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Abstract:
Defendants have the same right to offer Rule 404(b) evidence as prosecutors, and they are not required to give pretrial notice under the Federal Rules of Evidence. When defendants offer this evidence, they attempt to prove that someone else is guilty of the crime attributed to them. This often is referred to as reverse Rule 404(b) evidence. Some defense evidence will be admitted - indeed the Confrontation Clause or Compulsory Process Clause may require admission in some cases - but not all defense evidence will be admitted. The issue is where to draw the line between admissible and inadmissible evidence. Two recent cases help to provide an answer. In United States v. Montelongo the court held that the defendant had a constitutional right to explore another person's possible guilt. In United States v. Seals, the court found that the evidence was irrelevant and appropriately excluded.

Evidence, Reverse Rule 404(b) evidence, Confrontation Clause, Compulsory Process Clause, criminal law, Montelongo, Seals

Abstract:
The Supreme Court has made the body of Fourth Amendment law too complicated, inconsistent, and confusing. Prior to Mapp v. Ohio, in 1961, the Court focused its attention on federal law enforcement and devoted less of its docket to criminal procedure cases. After Mapp, the Court was called upon to review state cases and forced to deal with the myriad of state law enforcement issues that inevitably arise. Since Mapp, the Court has made the meaning of the relatively few words that constitute the Fourth Amendment extremely complicated, so that the total body of Fourth Amendment law has begun to take on the shape of an Internal Revenue Code (a hodgepodge of rules enacted by ever-shifting coalitions of decision makers) rather than a body of coherent principles (of the type often associated with judicial decisions and reasoning).

This article offers examples of the unsatisfactory present state of the law, suggests alternatives to the Court's holdings, seeks to demonstrate why principled rules provide clearer guidance to law enforcement and citizens than arbitrary bright line rules, and explains how principled rules can enable law enforcement to do its work effectively while being true to basic Fourth Amendment values.

After demonstrating the problems associated with the Court's arbitrary and inconsistent decisions, the article identifies some basic principles that should guide the Court. I explain the importance of determining whether law enforcement officials are engaging in consensual or nonconsensual conduct. I discuss seizures and Terry stops and offer suggestions on adopting principles that would make it easier for both law enforcement officers and citizens to know when a seizure occurs. I address a controversial suggestion for reform of Fourth Amendment law. Finally, I conclude with three straight-forward suggestions for making the law of searches clearer and more principled.

Fourth Amendment, Mapp, criminal procedure, law enforcement, arrest, stop, search, seizure

Abstract:
The accused in a criminal case has the right to offer evidence of a pertinent character trait in order to cast doubt on whether he or she would commit the crime charged by the government. This right gives the accused an opportunity to offer predisposition evidence that is otherwise generally inadmissible. Calling a character witness is not without risk, however. The principal risk is that the witness may be cross-examined about specific acts that are inconsistent with the character to which the witness attests. This article discusses Michelson v. United States, and United States v. Pirani, the latter which reminds us that a federal defendant has the option of calling a character witness to testify as to reputation, opinion, or both; a witness called as a reputation witness may end up offering opinion testimony by volunteering support for the defendant; and guilt assuming questions are now perceived by many courts to be inconsistent with the presumption of innocence.

Evidence, Michelson, Pirani, character witness, reputation witness, guilt assuming question

Abstract:
Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The prosecutor acted unprofessionally and disregarded the constitutional right of the defendant in a capital case to rely on mitigation evidence, the defense counsel failed in his responsibility to protect the defendant from the prosecutor's improper conduct, the trial judge failed to correct the prosecutor's conduct or to take measures to assure that conduct did not prejudice the defendant, and the California Supreme Court (and to some extent the United States Supreme Court) pretended that nothing untoward had occurred. The article concludes that the professionals at trial breached their responsibilities: the California Supreme Court failed to appreciate the extent of the breaches and affirmed the resulting death sentence; and federal habeas corpus review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proved too limited to set aside a sentence that resulted from the breaches.

standards of professional conduct, adequate legal representation, Antiterrorism and Effective Death Penalty Act of 1996, habeas corpus, death penalty

Abstract:
This paper, presented at International Bar Association's 10th Transnational Crime Conference in Washington, D.C., on June 9, 2007 begins from the premise that, as the world becomes more complex and therefore more dangerous, governments seek to limit individual rights in the name of crime control and/or national security. The paper cautions that we must always keep in mind that individual rights once lost are not easily regained. Accordingly, the unique and important role of an independent bar in protecting and defending liberty is more, not less, important than ever before. Thus, the efforts of the lawyers, military and civilian, to protect the rights of Guantanamo detainees, the courageous efforts of Karina Moskalenko to make legal rights meaningful in Russia, the refusal of Chief Justice Chaudry to compromise the independence of his Supreme Court, and the willingness of lawyers to take to the streets to support him are all part of a fight to preserve and protect the rule of law. These lawyers and judges remind us that preserving the rule of law, often is a challenge requiring self-sacrifice and risk-taking, is something never to be taken for granted. If any good comes from governmental efforts to deny detainees lawyers, it is a reminder of the importance of an independent bar.

combatants, Detainee Treatment Act, Military Commissions Act, independent bar, Hamdi, Shakespeare, Stimson

Abstract:
This article, discussing trial tactics, considers the scenario in which the government seeks to elicit testimony from a witness, involved in the criminal activity, that has entered into a plea agreement; the defendant offers to stipulate that the defense will make no effort to impeach the witness through the use of the plea agreement and moves to exclude it from evidence; yet the prosecutor insists upon using the agreement. The article discusses United States v. Richardson, 421 F.3d 17 (1st Cir. 2005), and United States v. McNeill, 728 F.2d 5 (1st Cir. 1984), and concludes that there is no sensible distinction to be drawn between them.

impeachment, witness credibility, evidence, plea agreement, Richardson, McNeill

Abstract:
This article on trial tactics suggests that probably no rule of thumb is more important to a trial lawyer than this: You need only one good theory of admissibility or objection to win a point, and in many instances the key is to pick the winner and avoid the losers. The rule is easy to state and widely acknowledged. It is more difficult, however, to apply than to acknowledge. A related rule is that a lawyer who has a powerful, potentially winning argument, may ultimately lose if that argument is lost in a flurry of less persuasive arguments.

trial lawyer

Abstract:
This article discusses a strange case, United States v. Bell, 516 F.3d 432 (6th Cir. 2008), that illustrates the point that, if hard cases make bad law, strange cases sometimes produce surprising appellate decisions. The case began with a domestic violence call to the police, led to a consent search of a home and discovery of drugs and guns, and produced a conviction on drug and weapons charges. Despite the abuse of discretion standard of review and the usual deference appellate courts give to trial judge decisions with respect to the admissibility of uncharged crime evidence, the court of appeals reversed.

United States v. Bell, uncharged crime evidence

Abstract:
These articles discuss United States v. Harlow, 444 F.3d 1255 (10th Cir. 2006), in connection with: (1) whether a prosecutor acts improperly when he or she uses the trial judge to vouch for the credibility of prosecution witnesses; and (2) the impermissible use of plea agreements to vouch for the credibility of a witness.

Harlow, vouch, Rule 35(b) motions, sentence reduction, plea agreements, criminal law

Abstract:
This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law. There has been little discussion about the respective roles that the federal government and the states should play in law enforcement. The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest organizations, and ordinary citizens to reexamine and establish our criminal justice priorities, to propose reforms that will identify more clearly those whose criminal acts warrant long prison sentences and those who are better served by treatment.

criminal justice, presidential campaign