Criminal Law - cdn.ymaws.com · Criminal Law . WEDNESDAY DECEMBER 19, 2018 UNIVERSITY OF NEBRASKA COLLEGE OF LAW - LINCOLN Steve Schmidt Associate Professor, Courtesy Associate Professor

Criminal Law

WEDNESDAY DECEMBER 19, 2018 UNIVERSITY OF NEBRASKA COLLEGE OF LAW - LINCOLN

Steve Schmidt Associate Professor, Courtesy Associate Professor of Forensic Science,

University of Nebraska College of Law

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Criminal Law

NE MCLE Accreditation 3 CLE / 1 ethics hourRegular/live #167462

Distance Learning # 167461

Wednesday December 19, 20181:00 pm – 4:30 pm

This 3-hours session will address three criminal law issues relevant to those who practice criminal law: bond, discovery and closing arguments.

1:00 pm - 2:00 pm Any Bailable Defendant Shall Be Ordered Released From Custody…Bond in Nebraska’s Criminal CourtsNationwide, any discussion regarding criminal justice reform includes a discussion about bail reform. Indeed, the Nebraska Legislature recently passed legislation intended to improve the cash bail system in Nebraska. This session will discuss the impact of that legislation as seen every day in the prosecutors’ bond requests, the defenses’ objections and the judges’ orders.

2:00 pm - 2:15 pm BREAK

2:15 pm - 3:15 pm Your Honor, the State Hasn’t Provided Me Copies of the Police Reports Yet…Discovery Obligations of the State in Nebraska Criminal CasesDiscovery in criminal cases is statutory. Additionally, the State has an obligation under Brady v. Maryland to provide evidence that would negate the defendant’s guilt, reduce the crime or lessen the defendant’s punishment. This session covers the when and what items the State is required to provide. And what they’ll most likely provide regardless of statutory requirement.

3:15 pm - 3:30 pm BREAK

3:30 pm - 4:30 pm Crossing the Ethical Line: Twenty Years of Closing Arguments in Criminal Cases and Things Better Left UnsaidIn criminal appeals, an increasing number of prosecutorial misconduct claims are based upon statements made by prosecutors during closing arguments. During this session, we’ll discuss many of such cases that have arisen in the past twenty years and highlight some of the more significant cases. This session will also dis-cuss what a lawyer can and cannot say during closing arguments, including when a lawyer crosses the “ethical line” by using recent Nebraska cases and Nebraska Rules of Professional Conduct.

SPEAKER: Steve Schmidt

University of NebraskaCollege of Law

1875 N 42nd Street Lincoln

Regular registration$195

NSBA dues-paying member $150

Law students FREE

Registration page 2

www.nebar.com

Associate Professor, Courtesy Associate Professor of Forensic Science,

University of Nebraska College of Law


FACULTY BIO ____________________________________________________________________________________________________________________________

Steve Schmidt Associate Professor, Courtesy Associate Professor of Forensic Science, University of Nebraska College of Law Professor Steve Schmidt joined the faculty in 2007. Before attending law school, he was an infantry officer in the United States Marine Corp. After receiving his JD from the University of Nebraska College of Law, he worked in the Lancaster County Attorney's Office. As a Deputy County Attorney, he primarily prosecuted sexual assault and domestic violence cases, but also handled a wide variety of other felony and misdemeanor cases. Currently, Professor Schmidt is heavily involved in an on-going project with the National Autonomous University of Mexico (UNAM) to assist as Mexico transitions its criminal justice system from a mixed inquisitorial to an oral adversarial model.


12/19/2018

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An Afternoon with Nebraska Criminal Law

An ACTION‐PACKED AFTERNOON

•Bond

•Discovery

•Closing Arguments

Audience• New Attorney

• More Experienced Attorney

• Very Experienced Attorney

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Audience• In person audience

• “On line” audience

A view from the trenches…

“Any bailable defendant shall be ordered released from Custody…”

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And other legal fictions.

Bond in Nebraska’s Criminal Courts

Bail and Bond

• The Origin of Bail

• Nebraska Bail Laws & Rules

• Bail Purposes

• Conditions of Release

• Types of Bonds

• Nationwide Reform

• Nebraska Reform

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THE ORIGIN OF BAIL

Bail

• The concept of bail was developed during the Anglo‐Saxon period of England…

– You know, the Dark Ages

– When heretics were burned at the stake.

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Bail

• The concept of bail was developed during the Anglo‐Saxon period of England…

– You know, the Dark Ages

– When heretics were burned at the stake.

– 410 A.D. to 1066 A.D.

– Yes seriously.

Bail

• Original purpose was to serve as an aid to resolve disputes peacefully.

• When a dispute occurred, there was a fear that the accused would flee without compensating the victim.

• A process was devised whereby the accused had to find someone to serve as their surety who agreed to pay the settlement amount to the victim if the defendant fled.

• No money was actually required to be put up or posted. Defendant just had to show they would be able to pay the settlement if needed.

Bail

• Later, it began being used as a method to secure release from pre‐trial incarceration.

• Imported to US from England.

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Bail vs. Bond

Bail• Amount of money needed

to secure pretrial release

Bond• “Contract” between court

and incarcerated person to further bond purposes

NEBRASKA BAIL LAWS & RULES

Sources

• Nebraska Constitution

• Nebraska Statutes

• Uniform County Court Rules of Practice and Procedure

• Bond Schedule

• Bond Form

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Nebraska Constitution

All persons shall be bailable by sufficient sureties, except for treason, sexual offenses

involving penetration by force or against the will of the victim, and murder, where the proof is

evident or the presumption great. Excessive bail shall not be required….

Article I, Section 9

Nebraska Revised Statutes

Any bailable defendant shall be ordered released from custody pending judgment on his or her personal

recognizance unless the judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of victims, witnesses, or other

persons in the community.

§29‐901 et seq.

Uniform County Court Rules of Practice and Procedure

When any person shall be taken into custody and charged

with any misdemeanor, the sheriff or the jailer may admit such person to bail in an amount not in excess of that

prescribed by the bond schedule furnished by the judges of that court, conditioned for his or her appearance in this

court to answer the offense charged. In unusual cases, the sheriff or jailer may consult a judge of this court about the bond; a judge's verbal order setting such person's bond shall

supersede the bond schedule.

§6‐1416

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Bond Schedules

Allowed by Neb.Rev.Stat. §29‐901.05It shall be the duty of the judges of the county court in each county to prepare and adopt, by a majority vote, a schedule of bail for all misdemeanor offenses and such other offenses as the judges deem necessary. It shall contain a list of such offenses and the amounts of bail applicable thereto as the judges determine to be appropriate. If the schedule does not list all misdemeanor and other offenses specifically, it shall contain a general clause for misdemeanors and a separate one for any other offenses providing for designated amounts of bail as the judges of the county determine to be appropriate for all such offenses. The schedule of bail may be revised from time to time by the judges of the county, and the presiding county court judge at each county seat shall call not more than two meetings nor less than one meeting each year of all judges of the county court in the county for the purpose of establishing or revising a countywide uniform bail schedule. A copy of the schedule shall be sent to the officer in charge of the county jail and to the officer in charge of each city jail within the county.

Bond Schedules

• List of Bail AMOUNTS for certain misdemeanors

• List of General Rules

• List of NO PreArraignment Bond situations– Felonies

– Sexual Offense

– DV Assault

– VPO

– Stalking

– Contempt Warrant

– Extradited from another state

• Generally referred to as “Pre‐Arraignment Bonds”

• HOW TO GET OUT OF JAIL B/F ARRAIGNMENT

Bond Schedules

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Bond Forms

Bond Forms

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PURPOSE OF BAIL

Purpose of Bond – 29‐901(1)

1. To assure the appearance of defendant as required

– ONLY statutory purpose until 2009

2. Public Safety

– Necessary when release could “jeopardize… the safety of victims, witnesses, or other persons in the community”

3. Prevent loss of evidence

– Necessary when release could “jeopardize the safety and maintenance of evidence”


The court SHALL consider all methods of bond and

conditions of release to avoid pretrial incarceration.

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A last resort…

FREEDOM is the default!

CONDITIONS OF RELEASE

If Court determines defendant shall not be released on recognizance, Court SHALL:

1. Consider defendant’s financial ability to pay a bond AND

2. Impose the LEAST ONEROUS of:

I. Place in custody or person/organization which has agreed to supervise

II. Place restrictions on travel, association, or place of abode

III. Require appearance or bail bond

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In determining conditions of release Court SHALL consider:1. Nature and circumstances

of charged offense

2. Info showing Δ may engage in additional criminal behavior

3. Info showing threat to self/others

4. Info showing threat to “yet to be collected evidence”

5. Family Ties

6. Employment

7. Financial Resources

8. Character & Mental Condition

9. Length of local residency

10. Record of Convictions

11. Record of Appearances or Flight to avoid prosecution or FTAs

In determining conditions of release Court SHALL consider:

1. Defendant’s ability to pay when determining bond amount

In determining conditions of release Court MAY consider:

1. Nature and circumstances of charged offense

2. Info showing Δ may engage in additional criminal behavior

3. Info showing threat to self/others

4. Info showing threat to “yet to be collected evidence”

5. Family Ties

6. Employment

7. Financial Resources

8. Character & Mental Condition

9. Length of local residency

10. Record of Convictions

11. Record of Appearances or Flight to avoid prosecution or FTAs

Statutorily Speaking…

1. Recognizance

2. Conditioned Release

3. Appearance Bond

4. Bail Bond

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Practically Speaking

1. Personal Recognizance (PR)

2. Percentage

3. Cash

4. Surety

TYPES OF BONDS

Types of Bond

1. Personal Recognizance

• 29‐901(1)

• “Any bailable defendant shall be ordered released from custody pending judgement on his or her personal recognizance unless…”

• No cash required

• Commonly referred to as a “PR” or “signature” bond.

• Court can place conditions on it

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Types of Bond

2. Percentage

• 29‐901(1)(c)(i)

• “Appearance Bond”

• “not to exceed 10%” of bond amount

• Commonly referred to as a “regular” or “percentage” bond

• Deposited amount can’t be less than $25

• 90% returned when case resolved

Types of Bond

3. Cash

• 29‐901(1)(c)(ii)

• “Bail Bond”

• Full bond amount

• ALL returned when case resolved

• “At the option of such person…”

Types of Bond

4. Surety

• 29‐901(1)(c)(ii)

• “Bail Bond”

• With such surety or sureties as shall seem proper to the judge

• Full bond amount

• ALL returned when case resolved

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NATIONAL REFORM

Why?

• Highest incarceration rate in the world

• Bail determination not individualized

• “Wrong” people incarcerated

– Not most dangerous

– Not worst crimes

– Not worst criminal histories

– Poorest

• Cost

As Federal Bail Reform Stalls, States and Cities Act

The good news: New Jersey Bail Overhaul is WorkingThe Bad News: It’s already going broke.

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Types of National Reform

• Supervised Release

• Most released w/o posting bail, but some held without bail

– Default is to release, unless prosecutor can show judge they should be held w/o bail

– No bail allowed for murder, sexual assault, robbery, etc

– Some pushback from Bail Reform Advocates

• Released w/o posting bail for all misdemeanors

• Replacing bail system with analytic tool assessing whether ∆ should be held or released

NEBRASKA REFORM

LB 63 (2009)

•Added bail purposes of:–Public Safety

–Protection of Evidence

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LB 395 (2017)

• Bail Reform

– Avoid everything short of incarceration prior to setting a bond

– Defendant’s financial situation “primary consideration” (but that language removed)

• Folded into LB 259

– Current State of Bond Statutes 29‐901 et seq.

LR 415 (2018)

Allows for an interim study to examine the effectiveness of statute 29‐901, as relates to the imposition of bail and the requiring of money bonds for misdemeanors and city ordinance

violations.

LR 415 (2018)

1. Current statutory scheme for bonds

2. # inmates on bonds for misdemeanors

3. Associated costs for counties to detain/house pretrial on misdemeanors

4. Feasibility of alternatives & consequences or risks to public safety of eliminating them

5. Examination/Consideration of changes to allow indigent pretrial detainees to avoid unnecessary/costly county jail

6. Review of Neb. Statutes to determine changes needed to reform bail for misdemeanors

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ISSUES/QUESTIONS

• Current Scheme

– Establishing “defendant’s financial ability” very inexact science

• Future

– If doing away with misdemeanor bail, maybe retain for certain offenses

• Similar to Bond Schedule, some misdemeanors are just more serious than others

– The Problem with Recidivists

– Cost of Pretrial Release Programs

Questions?

Steven J. Schmidt

Associate Professor of Law

College of Law

402‐472‐1323

402‐441‐8162

[email protected]

@LawProfSchmidt on

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Discovery Obligations of the State in Nebraska Criminal Cases

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Discovery in Criminal Cases

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Police Reports

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• Statutory Discovery • Where do we find the State’s Discovery obligation?• For what types of cases?• When?• What is Discoverable?• What must prosecutors do to comply?

•Defense Obligation?• Brady Material• Ethical Obligations

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Police Reports

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Police Reports


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Police Reports

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Police Reports

Copies

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Where do we find the State’s Discovery obligation?For what types of cases?When?What is Discoverable?What must prosecutors do to comply?

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Neb.Rev. Stat.

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Neb. Rev. Stat. 29‐1912 et seq.When a defendant is charged with a felony or when a defendant is charged with a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, he or she may request the court where the case is to be tried, at any time after the filing of the indictment, information, or complaint, to order the prosecuting attorney to permit the defendant to inspect and copy or photograph:

15+ Brady!

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Neb. Rev. Stat. 29‐1912When a defendant is charged with a felony orwhen a defendant is charged with a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, he or she may request the court where the case is to be tried, at any time after the filing of the indictment, information, or complaint, to order the prosecuting attorney to permit the defendant to inspect and copy or photograph:

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What type of cases?

•Felonies•Misdemeanors*•City Ordinances*

Statutory Discovery applicable to:

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IV

* When imprisonment is a possible penalty

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What type of cases?

• Infractions•MIV ($0 ‐ $500 fine)*•MV ($0 ‐ $100 fine)

*EXCEPT Marijuana < 1oz, 2nd Offense because up to 5 days jail is a possible penalty.

Statutory Discovery NOT applicable to:

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MIVMV

MV

Inf.


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Neb. Rev. Stat. 29‐1912When a defendant is charged with a felony or when a defendant is charged with a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, he or she may request the court where the case is to be tried, at any time after the filing of the indictment, information, or complaint, to order the prosecuting attorney to permit the defendant to inspect and copy or photograph:

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When is Discovery allowed?

• After a request by Defendant

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Request by Defendant

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• Written Motion to Discover


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• Written Motion to Discover

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• Written Motion to Discover• Oral Motion



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“The court where the case is to be tried…”

• Misdemeanors• County Court

• Felonies• District Court

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• After a request by Defendant• In the “court where the case is

to be tried…”

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• After a request by Defendant• In the “court where the case is

to be tried…”• AFTER charging document

filed.

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• No Discovery Request, no statutoryrequirement to provide it

• Usually written Motion for Discovery or Oral Motion in court

• NO right to Discovery in County Court on Felonies

• NOT pre‐charge 32



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What material is discoverable?29‐1912(1)a. The defendant's statement, if any. b. The defendant's prior criminal record, if any;c. The defendant's recorded testimony before a grand jury;d. The names and addresses of witnesses on whose evidence

the charge is based;e. The results and reports of physical or mental examinations,

and of scientific tests, or experiments made in connection with the particular case, or copies thereof;

f. Documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever kind or nature which could be used as evidence by the prosecuting authority;

g. h. i. j. and k. Stuff related to jailhouse witnesses 34

What material is discoverable?1. Defendant’s statement2.Defendant’s prior criminal record3.Defendants recorded testimony before grand jury (extremely rare)

4.Names and addresses of witnesses 5.Results and reports of physical/mental exams and scientific tests or experiments OR COPIES THEREOF

6.Tangible items of evidence7.Stuff related to “jailhouse witness” 35

Police Reports?But…

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NO!

They often (usually?) contain:1. Defendant’s statement2. Defendant’s prior criminal history3. Results of examinations or tests (think

DUI)4. Names and addresses of witnesses5. References to tangible things “which could

be used as evidence.”

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What must Prosecutor do to comply?• Allow Defendant to• Inspect and• Copy or Photograph

• NO requirement for State to make copies

• NO requirement for State to provide copies

• No requirement for State to pay for copies* 39

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Practically Speaking???Prosecutors going to give defense attorneys/pro se defendant’s their file?Prosecutors going to give defense their only copy of the photographs, audio tapes, videos?

Prosecutors going to go through ALL their investigative reports and “black out” the items that aren’t specifically discoverable? 40

Practically Speaking…• Provide Police Reports• Provide Criminal History• Provide Copies of Items that may be used as

evidence• Pictures, videos, audiotapes, etc.

• MAKE A RECORD of what you have provided• Email/Cover letter to defense• Copy of law enforcement report listing• Filed Response to Motion to Discover 41


Police Reports

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Police Reports


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Police Reports

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Done?

Police Reports

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'29‐1913‐ Samples to Defendant for TestingCourt may order State to provide samples of tested materials to defense to allow them to have their own experts test the materials.

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Samples of evidence to Defense for testing

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'29‐1916 ‐ Reciprocity to Prosecution

(1) Whenever the court issues an order pursuant to the provisions of sections 29‐1912 and 29‐1913, the court maycondition its order by requiring the defendant to grant the prosecution like access to comparable items or information included within the defendant's request which:(a) Are in the possession, custody, or control of the defendant;(b) The defendant intends to produce at the trial; and(c) Are material to the preparation of the prosecution's case.

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Prosecutor’s Obligation Defendant’s Obligation

'29‐1912(1)

Defendant’s statement

Defendant’s criminal history

Defendant’s recorded testimony

Witness Names/Addresses

Results of tests

Tangible items which could be used as evidence by the prosecutor

'29‐1916(1)(b)

Like access to “comparable items or information included within the defendant’s request which”

1. In possession/custody/control of defendant

2. defendant intends to produce at trial

3. are material to prep of prosecutor’s case 51

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Two Areas where Defense Reciprocal Discovery Obligation may be Alleviated…

1. Names and Addresses of Witnesses

2. Tangible Items

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Names and Addresses of Witnesses If requested by Defense, State must provide names and addresses of all State witnesses. Names of potential State witnesses found on endorsed witness list

Most names/addresses found on police reports anyway…

If reciprocal discovery is ordered, Defense must provide names and addresses of their witnesses to State

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Motion to Discover (Request by Defendant)5 Paragraph 4 Paragraph

1. Defendant’s Statement

2. Defendant’s Criminal History

3. Names and Addresses of Witnesses

4. Results of Exams or Tests

5. Tangible items “which could be used as evidence” by the prosecutor

1. Defendant’s Statement

2. Defendant’s Criminal History

3. Results of Exams or Tests

4. Tangible items that may be used as evidence

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• Motion to Discover

Court’s Order

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Court’s Order

“Sustained as to statute”

Only items requested? So if names and addresses of witnesses not requested, defense doesn’t have to provide

Everything listed in statute? So even if names and addresses of witnesses not requested, defense does have to provide

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Court’s Order

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(1) Whenever the court issues an order pursuant to the provisions of sections 29‐1912 and 29‐1913, the court may condition its order by requiring the defendant to grant the prosecution like access to comparable items or information included within the defendant's request which:(a) Are in the possession, custody, or control of the defendant;(b) The defendant intends to produce at the trial; and(c) Are material to the preparation of the prosecution's case.

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Tangible items

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29‐1912(1)f. Documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever kind or nature which could be used as evidence by the prosecuting authority;

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Tangible items

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• So if requested, defense must provide, right?

Reciprocity?

Prosecutor’s Obligation Defendant’s Obligation

'29‐1912(1)

Tangible items which “could be used as evidence” by the prosecutor

'29‐1916(1)(b)

Like items which defendant “intends to produce at trial”

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'29‐1916 ‐ Reciprocity to Prosecution• Prosecutors should insist on it• Prosecutors should file a Demand• Prosecutors should object at Trial when unknown witness, unknown evidence or unknown test result appears• Remind the Court of the Defendant’s Motion for Discovery, the Court’s Reciprocal Order and ask that the witness/evidence/test result not be allowed

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'29‐1917 ‐ Depositions• In felony cases, AFTER case is in District Court

• Either State or defense can depose ANY witness (other than the defendant)• Essentially whomever is on the endorsed witness list and any identified defense witness (again, other than defendant)• Maybe… See State v. Williams, 26 Neb.App. 459 (2018). Reciprocal order goes to Discovery requested via 29‐1912 not Depositions via 29‐1917 64

'29‐1917 ‐ Depositions• If prosecutors know defense witnesses (5 paragraph Motion to Discover with Reciprocal Order) they should consider deposing defense witnesses pre‐trial• File a Motion

• If prosecutors DON’T know defense witnesses (4 paragraph Motion to Discover), they should consider asking the Court to allow them to depose the witness before they testify at trial 65

'29‐1918 – Discovery is a continuing obligation• If new evidence arises prior to trial, notify opposing counsel and the court• Additional witness information, follow‐up investigation, etc

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'29‐1919 – Discovery Violations• Court determines appropriate remedy

• Order party to comply• Grant a continuance• Prohibit offending party from calling witness or adducing undisclosed evidence

• “Enter such order as [the court] deems just under the circumstances.”

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'29‐1920 – Indigent Defendant• This is an instance where the State IS required to pay for Discovery• Defendant is adjudged indigent• Reasonable costs incurred during Discovery• Taxed to prosecuting authority

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Brady vs. MarylandBrady and co‐defendant committed gruesome murder. Brady tried and testified that he was present, but the actual murder was committed by co‐defendant. Jury convicted and sentenced to death.

Prosecution had in its possession a statement from co‐defendant where he acknowledged that he was the one who committed the actual murder, but didn’t turn over to defense.

Ct reversed and remanded for new sentencing.70

Brady vs. Maryland

Brady thus stands for the proposition that when a prosecutor fails to comply with a defendant's request for evidence that might be relevant to negating the defendant’s guilt, reducing the crime or lessening the punishment, the prosecutor violates due process if the evidence is material to guilt or punishment.

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Brady Material

• Negates defendant’s guilt

• Reduces the crime or

• Lessens the punishment

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Brady vs. MarylandThree parts to a true Brady violation:

1. The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching

2. That evidence must have been suppressed by the State, either willfully or inadvertently

3. And prejudice must have ensued.

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Rules of Prof. Conduct

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Not surprisingly, the ABA has something to say about a prosecutor’s duty to disclose

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ABA Standards for Criminal Justice Prosecution Function and Defense Function

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Standard 3‐3.11 Disclosure of Evidence by the Prosecutor(a) A prosecutor should not intentionally fail to make timely

disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.

(b) A prosecutor should not fail to make a reasonably diligent effort to comply with a legally proper discovery request.

(c) A prosecutor should not intentionally avoid the pursuit of evidence because he or she believes it will damage the prosecution’s case or aid the accused. 76

As an aside, the ABA even addresses the Defense Duty for Discovery

Defense counsel should make a reasonably diligent effort to comply with a legally proper discovery request.

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Standard 4‐4.5 Compliance with Discovery Procedure

The National District Attorneys Association has also weighed in

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National Prosecution Standards

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Section 9.1 Prosecutorial Responsibility

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A prosecutor should, at all times, carry out his or her discovery obligations in good faith and in a manner that furthers the goals of discovery, namely, to minimize surprise, afford the opportunity for effective cross‐examination, expedite trials, and meet the requirements of due process. To further these objectives, the prosecutor should pursue the discovery of material information, and fully and promptly comply with lawful discovery requests from defense counsel.

Also addresses reciprocal discovery

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A prosecutor should take steps to ensure that the defense complies with any obligation to provide discovery to the prosecution.

9.6 Reciprocal Discovery

Nebraska Rules of Professional Conduct

The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal . . .

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§ 3‐503.8. Special responsibilities of a prosecutor.

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Only cited in one Nebraska Case – Rodriguez case(But not related to discovery issues)

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§ 3‐503.8. Special responsibilities of a prosecutor.


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Motion to Discover

Discoverable Material


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Tangible Evidence for Testing upon Request

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More Discoverable Material

Continuing Obligation

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Reciprocal Discovery

Demand Reciprocal

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Discovery

Discovery Violations…

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Discoverable Material

Who is this guy? Michael B. Nifong Durham County District

Attorney 2005‐2006 Passed bar in 1978 Hired as “fill‐in” prosecutor

in 1978 Hired as full‐time ADA in

1979 Appointed DA in 2005 Prosecuted Duke Rape case Sued Jailed Disbarred Bankrupt Now looking for work…

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Discovery Violations3. Did not make timely disclosure to the

defense of all evidence or information known to him that tended to negate the guilt of the accused

4. Failed to make a reasonably diligent effort to comply with a legally proper discovery request

5. Did not, after a reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate the guilt of the accused

6. Failed to disclose evidence or information that he knew, or should reasonably have known, was subject to disclosure under applicable law, rules of evidence, or court opinions

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And it goes international…<http://www.urbandictionary.com/define.php?term=nifong>

Nifong: • To use the law to destroy innocent people. • The practice of deception by hiding important

evidence, information, or creating false statements to further ones career without being caught.

• To knowingly undermine set professional standards to further ones career, on the back of innocent people.

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In conclusion… Don’t be a Nifong… Prosecutors:

Comply with Discovery Statutes Demand that Defense do the same! Make a record of what you have provided Be mindful of your Brady obligations

If it Negates defendant’s guilt Reduces the crime or Lessens the punishment

TURN IT OVER

Follow your ethical duty

Defense Attorneys: File Proper Discovery Requests Review materials when received to ensure completeness Comply with Orders for Reciprocal Discovery

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Steven J. [email protected]

402-472-1323@LawProfSchmidt

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Things Better Left Unsaid…Twenty Years of Closing Arguments in Nebraska Criminal Cases

A view from the trenches…

Closing Arguments

• Spirited Summation in the “rough and tumble “ atmosphere of a trial

• Persuasive

• Passionate

• Unprofessional

• Prejudicial

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All I really need to know, I learned in kindergarten

1. Don’t call names.

2. Play fair.

3. Don’t fib.

Appellate Caselaw for Criminal Cases

• Necessarily skewed

– Who appeals?

– When do they appeal?

– What do they complain of when they appeal?

• Most commonly review prosecutor’s statements and conduct

NOT a review of the last twenty years of closings in criminal cases…

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Instead, a review of the last twenty years of closings in fairly significant criminal cases where defendant was convicted and filed an appeal based in part, on statements made by prosecutors during their closing arguments.

“The Court has addressed this issue a lot recently…”

• More and more criminal appeals where defense assigns as error statements made by the prosecutor during closing argument.

• 2018 search of “Prosecutorial Misconduct, Prohibition against Improper Statements yields 23 results.

– 14 of which involve defense allegations of improper statements by prosecutor during closing arguments

What is the Prosecutor‘s ethical obligation?

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3.8 Special Responsibilities of Prosecutor

Comment [1]

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it the specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.

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ABA Standards for Criminal Justice

3‐1.2(c) The Function of the Prosecutor

(c) The duty of the prosecutor is to seek justice, not merely to convict.

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Berger v. United States295 U.S. 78 (1935)

He may prosecute with earnestness and vigor – indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

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As an aside, what about Defense Counsel?

ABA Standards for Criminal Justice

3‐1.2(c) The Function of the Defense Counsel

(c) The basic duty defense counsel owes… is to serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality representation.

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Justice White on Defense AttorneysUnited States v. Wade388 U.S. 218, 256 (1967)

concurring and dissenting:“Law enforcement officers have the obligation to convict the guiltyand to make sure they do not convict the innocent. They must bededicated to making the criminal trial a procedure for the ascertainmentof the true facts surrounding the commission of the crime. To thisextent, our so-called adversary system is not adversary at all; nor should

it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that he defend his client whether he is innocent or guilty.”

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Justice White on Defense AttorneysUnited States v. Wade388 U.S. 218, 256 (1967)

“The state has the obligation to present the evidence. <Defense Counsel> need not present any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help

the prosecutor’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.”

concurring and dissenting

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Prosecutorial Misconduct

• Two Prong Test

1. Did statements mislead or unduly influence jury?

2. Did it prejudice defendant’s right to fair trial?

Did it prejudice defendant’s right to fair trial?• Five considerations

1. Degree to which remarks tended to mislead/unduly influence jury.

2. Whether remarks were extensive or isolated.

3. Whether defense counsel invited the remarks.

4. Whether the court provided a curative instruction

5. Strength of evidence supporting conviction.

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1. Don’t call names.

• Defendant.

• Associates of Defendant.

• Opposing Counsel.

Calling Defendant Names.

• Frowned upon.

– State v. Barfield, 272 Neb. 502 (2006)

– State v. Cobos, 22 Neb.App. 887 (2015)

Barfield (2006)

• Direct Appeal

• “Misconduct” alleged:

– Prosecutor called defendant

• Two headed Hydra

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“Two Headed Hydra”KILLERS“Monster of Mayhem”

“King of Killers”“Tower of Terror”

Barfield (2006)

• Direct Appeal


– Prosecutor called defendant:

• Two headed Hydra

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•

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• Tower of Terror

• Monster of Mayhem

• King of Killers

• SupCt: Misconduct.

– Reversed & Remanded.

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Cobos (2015)

• Direct Appeal


– Prosecutor called defendant:

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•

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Cobos (2015)

“Predator”

Cobos (2015)

• Direct Appeal


– Prosecutor allegedly called defendant:

• “Predator”

– SupCt: Not on the record, can’t consider it.

– Affirmed.

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Calling Defendant Names.

• Objection! Improper Personal Attack

• Objection! Improper Name‐Calling

Calling Defendant’s Associates Names.

• Frowned upon.

• State v. Hernandez, 299 Neb. 896 (2018)

Hernandez (2018)

• Direct Appeal


– Prosecutor called defendant’s roommates (coincidentally, these were State witnesses):

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Hernandez (2018)

VerminRiffraff

Lowlife people

Hernandez (2018)

VerminRiffraff

Lowlife people

Hernandez (2018)• Direct Appeal


– Prosecutor called defendant’s roommates (coincidentally, these were State witnesses):

• Vermin

• Riffraff

• Lowlife people

• SupCt: Misconduct “This type of name‐calling has no place in a criminal prosecution.

– Overwhelming Evidence, so Affirmed.

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Calling Defendant’s Associates Names.

• Objection! Improper Personal Attack

• Objection! Improper Name‐Calling

Calling Opposing Counsel Names.

• Frowned upon.

• State v. Barfield

• State v. Wade

$#@!!

Barfield (2006)

• Direct Appeal


– Prosecutor said:

LIE

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Barfield (2006)

“I thought “LIE” was printed on back of defense attorneys’ business cards.”

LIE

Barfield (2006)

• Direct Appeal



• I thought “LIE” was printed on back of defense attorneys’ business cards.

• SupCt: Misconduct

– Reversed and Remanded.

LIE

Wade (1998)

• Direct Appeal



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Wade (1998)

“Don’t underestimate [defense counsel]; He’s good! He got a killer off!”

Wade (1998)

• Direct Appeal



• “Don’t underestimate [defense counsel]; He’s good! He got a killer off!”

• SupCt: Misconduct

– Reversed and Remanded.

2. Play fair.

• No Vouching.

– Espousing Personal Opinions

– Vouching for Witness

• Don’t Comment Extraneously

– Facts Beyond the Record

– Issues not Before the Jury

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No Vouching

• No Vouching.

– Espousing Personal Opinions

– Vouching for Witness

• Objection! Improper Personal Opinion/Improper Vouching

Hernandez (2018)

• Direct Appeal


Hernandez (2018)

“It, honesty, makes me sick…” [to call certain witnesses in my case in chief]

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Hernandez (2018)

• Direct Appeal


– Prosecutor said

• “It honestly makes me sick… [to call these witnesses]

• SupCt: “CLEARLY PROSECUTORIAL MISCONDUCT”

– Overwhelming Evidence, so Affirmed.

Don’t Comment Extraneously

• Facts Not in Evidence

• Issues Not Before the Jury

• Objection! Arguing Facts Outside the Record

• Objection! Improperly Arguing Matters not Before the Jury

2. Play fair.

• Don’t Comment on Criminal Defendant’s Silence.

– Post‐Arrest

– At Trial

• Don’t Put Jury in Place of Party or Witness.

• Don’t Shift the Burden

• Don’t Send a Message

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Don’t Comment on Criminal Defendant’s Silence

• Post‐Arrest

• At Trial

• Objection! Improperly Arguing Defendant’s Constitutional Right to Remain Silent

Don’t Put Jury in Place of Party or Witness

• Imagine if you or your loved one were a victim of this horrible attack…

• Imagine if you or your loved one were accused of this horrible act…

• Objection! Improperly Putting Jury in Place of Victim/Witness/Defendant

Don’t Shift Burden

• Defense attorney didn’t explain to you why he is not guilty.

• Objection! Improperly Shifting the Burden of Proof

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Don’t Send a Message

• “Send a message to all those who want to come to our community and commit these horrendous crimes – We won’t stand for it!”

• Objection! Improperly Arguing Issue Not Before the Jury.

3. Don’t fib.

• Misstating the Evidence

• Misstating the Law

• “Legal Fiction”

– #okaynotokay

Misstating the Evidence.

• You heard witness tell you A, B and C. (when witness really only testified to A and B.

• Objection! Misstatement of the Evidence

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Misstating the Law.

• The Judge will tell you that beyond a reasonable doubt means beyond any doubt.

• Objection! Argument Contrary to Law

“Legal Fiction”

• Excluded Evidence

– Motions to Suppress

– Motions in Limine

• Carefully crafted misrepresentation

• Objection?

State v. McSwine22 Neb. App. 791 (2015)

• Direct Appeal


– ∆’s testimony about trespass “unsupported by any evidence at all” and “nothing that supports ∆’s testimony”

• Ct of Appeals – Statements misled jury and prejudiced ∆’s right to fair trial.

• SupCt -

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State v. McSwine292 Neb. 565 (2016)

• Petition for Further Review

• SupCt – Statements not misleading, didn’t unduly influence jury = not misconduct

– Reversed and Remanded

• Clean up your Closings

– I believe, I think, the State believes…

How to Avoid Allegations of Misconduct



THE EVIDENCE SHOWS…

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– THE EVIDENCE SHOWS…

– Stick to admitted evidence.

– Use instructions for recitation of the law.

– Don’t put jurors in place of victim/witness /defendant

– Don’t call names.


• Ask that Closings be made ON THE RECORD

• Make appropriate, timely objections.

– When objections sustained, move to strike and ask for curative instruction

• When necessary, make motion for mistrial

Questions?

Steven J. Schmidt

Associate Professor

College of Law

402‐472‐1323

402‐441‐8162

[email protected]

@LawProfSchmidt on

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