1 / 27

~ Leverage Through Disocovery ~

~ Leverage Through Disocovery ~. Bertule, Knight, Tiedemann and Other Matters Related to Discovery and Admission of Evidence. Edwin S. Wall edwin@edwinwall.com. The Gambit. Thinking of a case in chess terms.

kitra-wells
Download Presentation

~ Leverage Through Disocovery ~

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. ~ Leverage Through Disocovery ~ Bertule, Knight, Tiedemann and Other Matters Related to Discovery and Admission of Evidence Edwin S. Wall edwin@edwinwall.com

  2. The Gambit Thinking of a case in chess terms. Gambit: A chess opening in which a player sacrafices material with the hope of achieving a resulting advantageous position. • Opening • Set • Middle Game • Pins • Forks • Sacrifices • End Game • Execution

  3. Opening~ Requests ~ Set: Positioning pieces so that they are ready to play out desired strategies. • Request for Discovery • Request Witness Statements • Request for Notice of 404(b) Evidence • Request for Notice of Experts • Request for Preservation of Evidence • Writings • Recordings • Photographs • Request Notice of Promises of Leniency • & Prior False Statements

  4. Request for Discovery (1) Except as otherwise provided, the prosecutor shall disclose to the defense upon request the following material or information of which he has knowledge: (2) the criminal record of the defendant; (3) physical evidence seized from the defendant or codefendant; (4) evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment; and (5) any other item of evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare his defense. • Rule 16 Discovery

  5. Witness Statements Prior Statements of Witnesses U.R.Crim.P 16,. F.R.Crim.P. 16 - Silence Rule 612, U.R.E. Need Not Show Witness Statement  Request Required for Disclosure to Counsel F.R.Crim.P. 26.2, Jencks Act 18:3500  Disclosure After Witness Testifies  Reqeuest Disclosure  Move for a Recess/Continuance

  6. Request for 404(b) Rule 404(b) Crimes, Wrongs or Other Acts Evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  Must request Notice  Prosecutor Must Provide Notice 1. General nature of evidence, 2. Before Trial  Hearing: Question of Admissibility

  7. Request for Experts State - Statute 77-17-13  30 Notice Before trial, 10 Day Notice Before a hearing.  Name, Address, CV and one of the following: • Expert’s Report, • Writen Explanation of Testimony, • Notice of Availablity to Consult.  Must Request Test Results 77-17-13(2) • Continuance • Bad Faith, Sactions • Deliberrate, Exclusion (URE 705 - Disclose facts and data on cross-examination)  Discovery on Experts - Mentors & References

  8. Promises of Lenieny & Prior False Statements Giglio v. United States, 405 U.S. 150, 94 S.Ct. 763 (1972) State v. Bakalov, 979 P.2d 799 (Utah 1999) When reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within rule that suppression of material evidence justifies a new trial irrespective of good faith or bad faith of the prosecution.  Move for an Affirmative Duty to Inquire  Ask Witness if Inquiry was Made/False Statements.

  9. Middle Game~ Motions ~ Pin: Prevent Movement. Fork: Simultaneous Options. Sacrifice: Forfeit to Gain Advantage. • Suppression of Evidence - Miranda • Discovery Requests - Knight • Destruction of Evidence -Youngblood/Tiedemann • Search Warrants -Franks/Nielson • Expert Evidence -Daubet/Maestas • Conspiracy Statements - James/Gray

  10. Suppression Miranda Revisited – Suspect Must First be Informed in Clear and Unequivocal Terms of the Right to Remain Silent as an Absolute Prerequisite in Overcoming Pressures of Interrogation Atmosphere. Miranda v. Arizona, 384 U.S. 436, 468 (1966). “[S]uch a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury.”

  11. Entrenchment of Rights Maryland v. Shatzer, 130 S.Ct. 1213 (2010)  Eternal Prophylaxis Too Long Edwards right to counsel was recongnized as aprophylaxis, not a constitutional mandate. Id. at 1224. Concern -"Edwards prohibition of custodial interrogation of a particular suspect would be eternal." Id. at 1222. Break in Custody Rule Once a suspect has been out of custody for 14 days, the coercive effect is eliminated and permitting law enforcement to initiate and then interrogate a suspect who has made a valid waiver of his Miranda rights. Prision is not custody if it is home. Presumption of Involuntariness Edwards establishes a presumption that a suspect's waiver of Miranda is involuntary, and is still free to claim waiver of Miranda rights was involuntary under Johnson v. Zerbst, 304 U.S. 458 (1938). Shatzer, 130 S.Ct. at 1223 n. 7.  Notice of Assertion of Right to Counsel  Motion to Entrench Right to Counsel U.S. v. Angilau, 2:08-cr-758-TC-6

  12. Discovery Requests State v. Knight, 734 P.2d 913 (Utah 1987)  When the State is Not Compelled to Produce Discovery by Court Order,  If it responds voluntarily to a request it must respond in a manner that will not be misleading. 1. The prosecution either must produce all of the material requested or must identify explicitly those portions of the request with respect to which no responsive, and 2. when the prosecution agrees to produce any of the material requested, it must continue to disclose such material on an ongoing basis to the defense.  Request Discovery and Move to Compel Produciton. If you do not move to compel evidence, The prosecutor does not have to give it to you!

  13. Destruction of Evidence State v. Tiedemann, 162 P.3d 1106 (Utah 2007) Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988) Trial Court to Consider Materiality and Importance of Evidence, to determine whether to dismiss the charges.  Defense must show a reasonable probability the lost or destroyed evidence would be exculpatory, then court considers the following to determine whether to dismiss: 1. The reason for the destruction or loss of evidence, including the degree of negligence or culpability of the State; and, 2. The degree of prejudice to the defendant in light of the materiality and important of the missing evidence in the context of the case as a whole, including the strength of the remaining evidence. Tiedemann: The prosecutor’s good faith is not material to the whether the prosecutor has violated their discovery duties, good faith ignorance does not excuse non-disclosure.

  14. Spoliation! Spoliation of Evidence occurs when either the chain of custody for evidence is not maintained or the evidence is not kept in its originbal and unaltered condition. In civil cases, when there is spoliation of evidence, the jury is instructed that they may make and adverse inference against the party that failed to properly maintain the evidence. There is an abundance of spoliation case law relating to civil cases in both state and federal courts. Spoliaition has not been adoped in the criminal law context, but arguably should be. It is submitted, where law enforcement does not properly maintain evidence, if the court admits the evidence the defense should be entitled to a spoliation instruction. Citation: Henning v. Union Pacific R. Co. 530 F.3d 1206, 1219 (10th Cir. 2008)(stating, “courts require evidence of intentional destruction or bad faith before a litigant is entitled to a spoilation instruction.” Emphasis added). Samuels v. United States, 397 F.2d 31 (10th Cir. 1968)(inference held against defendant). Spoliaiton Instruciton offered in U.S. v. Hood, 1:07-cr-78 DS

  15. Search Warrants Franks / Nielson Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978) State v. Nielsen, 727 P.2d 188 (Utah 1986) If, after evidentiary hearing, defendant establishes by a preponderance of evidence that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by affiant in search warrant affidavit, and, with affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, search warrant must be voided and fruits of search excluded to the same extent as if probable cause was lacking on the face of the affidavit.  Hearing Determines Whether the Officer Lied Under Oath.

  16. Expert Evidence Daubert / Maestas Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786 (1993)(scientific evidence); Kumho Tire Co. V. Carmichael, 526 U.s. 137, 119 S.Ct. 1167 (1999)(all expert testimony) State v. Maestas, 299 P.3d 892 (Utah 2012) State v. Quintana, 103 P.3d 168 (Utah App. 2004) (Fingerprints not novel scientific evidence). Trial court acted within its discretion in admitting expert testimony on fingerprint identification evidence, despite argument that such evidence was unreliable, where defense counsel did not present any expert testimony asserting either that fingerprint evidence was generally unreliable or that fingerprint identification methods were not properly applied in this case.  Hearing: Expert Witness - URE 702(b) & (c) Preliminary Question - URE 104 ✱

  17. Conspiracy Statements James / Gray United States v. James, 590 F.2d 575 (5th Cir. 1979) United States v. Thornburgh, 645 F.3d 1197 (10th Cir. 2011) United States v. Gray, 717 P.2d 1313 (Utah 1986) An out-of-court statement by alleged coconspirators is admissible during criminal prosecution of and against one such conspirator, if proof is made by the preponderance of the evidence that there was conspiracy and that the statement was made during course and in furtherance of the conspiracy, and declarant and defendant were members of conspiracy. URE & FRE 801(d)(2)(E). • James Hearing - Statements and Conspiracy Structure.

  18. End Game~ Trial ~ Execution: Acting on a strategic positioning. • Crimes, Wrongs & Other Acts • Preliminary Questions • Judicial Notice • Privilege • Personal Knowledge • Prior Statements • Police Reports ✱

  19. Preliminary Questions Preliminary Questions - URE 104  Witness Qualification  Evidence Admissiblity  Evidence Dependent on Existence of Fact  Hearing Required: Outside of Presence of Jury

  20. Judicial Notice Judicial Notice  Must Take Judicial Notice if Party Requests and Supplies Necessary Information.  Hearing: Opportunity to Be Heard.

  21. Privilege Husband-Wife URE 502 Clergy URE 503 Lawyer-Client URE 504 Government Informer URE 505 Physician and Mental Health Therapist URE 506 Privilege – Miscellaneous Matters 510  Hearing Outside Presence of Jury

  22. Personal Knowledge Personal Knowledge Foundation - Evidence Sufficient to Support Finding of Personal Knowledge. URE 602 Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. Voir Dire the witness!

  23. Prior Statements Prior Statements of Witnesses Rule 16, U.R.Crim.P. - Silence Rule 612, U.R.E. Need Not Show Witness Statement  Request Required for Disclosure to Counsel Prior Admissions of the Defendant - Voluntariness Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 (1964) State v. Mabe, 864 P.2d 890 (Utah 1993)  Hearing Required on Voluntariness

  24. Police Reports State v. Bertul, 664 P.2d 1181, 1185-1186 (Utah 1983) Admissible if Offered by the Defendant 803(6) - Business Records 803(8) - Public Records Reversible if Offered by the Prosecution “[P]olice reports of crimes should ordinarily be admitted when offered by the defendant in a criminal case to support his defense. When offered by the prosecution, however, they should ordinarily be excluded, except when offered to prove simple routine matters which are based on first-hand knowledge of the maker of the report and do not involve conclusions, and when the ‘circumstances of their preparation indicate their trustworthiness.” Burtul at 1185-1186

  25. Police Reports State v. Bertul, 664 P.2d 1181, 1185-1186 (Utah 1983) Admissible if Offered by the Defendant 803(6) - Business Records 803(8) - Public Records Reversible if Offered by the Prosecution “[P]olice reports of crimes should ordinarily be admitted when offered by the defendant in a criminal case to support his defense. When offered by the prosecution, however, they should ordinarily be excluded, except when offered to prove simple routine matters which are based on first-hand knowledge of the maker of the report and do not involve conclusions, and when the ‘circumstances of their preparation indicate their trustworthiness.” Burtul at 1185-1186

  26. Sentencing Evidence-Based Practices 77-18-1(5) Post Conviction Risk Assessment (PCRA) Pretrial Trial Risk Assessment (PTRA) Pre-Sentence Risk Assessment ?  Discovery and Disclosure

  27. Conclusion Nil Desperandum! Never Give Up! Edwin S. Wall, P.C. Edwin S. Wall Kelly A. Fowler 9 Exchange Place, Ste. 650 Salt Lake City, Utah 84111 (801) 746-0900 edwin@edwinwall.com

More Related