November 2017

November 2017 Cover

What is the essential jury instruction on witness memory and demeanor that defense lawyers almost never request?


Articles in this Issue

  1. A Better and More Useful Jury Instruction on Witness Memory and Demeanor Reflecting the Teachings of

    Judge Mark Bennett writes that most criminal cases turn on defense counsel’s ability to successfully attack the demeanor and memory of witnesses. Most pattern jury instructions about witness credibility, however, explain nothing about how a person’s memory works and nothing about how fallible memories actually are. Similarly, pattern jury instructions on demeanor seldom do more than ask jurors to speculate about a witness’s demeanor by instructing them to merely observe “the manner of the witness” while testifying. Yet cognitive psychological studies have provided major insights into witness memory and demeanor. The resulting cognitive psychological principles that are now widely accepted as the gold standard about witness memory and demeanor are often contrary to what jurors intuitively, but wrongly, believe.

    Judge Mark W. Bennett

  2. Affiliate News

    Affiliate News, November 2017 Champion.

    Gerald Lippert

  3. Book Review: Police State - How America’s Cops Get Away With Murder

    In his 17th book, “legendary” trial lawyer Gerry Spence uses eight of his cases to illustrate police excess. He has discussed several before: the Randy Weaver case is the keystone for From Freedom to Slavery. He has spoken about the Imelda Marcos and Geoffrey Fieger cases (both tried in federal court on charges, among others, for “obstruction of justice”) in public discussions.

    Susan Elizabeth Reese

  4. Book Review: The Feminine Sixth: Women for the Defense

    With accuracy and painstaking care, Andrea Lyon’s The Feminine Sixth: Women for the Defense documents and probes the exceedingly personal and revelatory accounts of being a woman criminal defense attorney as told by nine accomplished lawyers in the setting of a symposium for a presentation for Woman’s History Month. However, the discussion never happened. But it did — kinda. This nonfiction plus fiction equals a new form of literature that is sort of (literary) legerdemain where virtual reality meets documentarian prose. Most of all, it is a true page-turner. I read it in one sitting (while taking a break from preparing for trial, writing and filing a 40-page federal presentence memorandum, dealing with a breaking death case, and an international double death case). Yes, it is that good.

    Theodore Simon

  5. Book Review: The Maximum Security Book Club - Reading Literature in a Men’s Prison

    Mikita Brottman, a professor of humanities in Baltimore, conducts a weekly reading group at the Jessup Correctional Institution in Maryland. Most of the participants are serving long sentences for violent crimes. In The Maximum Security Book Club, she describes the group’s discussions and reactions as they study 10 of the books she has chosen for reading.

    Tony Bornstein

  6. E-Discovery and Use of Digital Evidence

    Rule 16 of the Federal Rules of Criminal Procedure is the primary means by which defense attorneys can force the government to disclose the electronically stored information (ESI) they need. Oftentimes the government will produce ESI in a format that is not searchable. Moreover, the government may not reveal the name of the software needed to review the discovery. The defense team should bring DOJ-approved recommendations concerning ESI to the judge’s attention so that it can obtain the discovery it needs. Pursuant to recommendations by the Joint Working Group on Electronic Technology in the Criminal Justice System, the defense should consider requesting a “meet and confer” session with the government to discuss (1) what ESI is available, (2) in what format it will be produced, and (3) when it will be produced.

    Richard D. Willstatter

  7. Essential Courtroom Tools for the DUI Trial

    Courtroom tools are similar to demonstrative evidence used by defense counsel in front of the jury. Advice such as “use your own markers” or “bring brightly colored tape with you” might sound trivial, but an attorney’s presentation to the jury is a lot like a fast food restaurant’s ad for the perfect cheeseburger. Everything must be controlled and nothing left to chance. James Nesci discusses the 10 items that should be in every DUI defense attorney’s toolbox.

    James Nesci

  8. From the President: Crack, Opioids, and the Modest Reparation of Clemency

    The intersection of race and health care has played a fundamental role in how opioids are affecting different demographics.

    Rick Jones

  9. Getting Scholarship Into Court Project

    Getting Scholarship Into Court Project for November 2017 Champion.

    Getting Scholarship Into Court Project

  10. Informal Opinion: ‘Almost’ Effective Assistance: Immigration Consequences — Lessons from United Stat

    Philip Swaby’s plea-based conviction was overturned for ineffective assistance of counsel that arose from a seemingly small oversight – one that any attorney might have made unless he or she were anything less than ultra-careful.

    John Norman Scott

  11. Inside ‘Operation Pacifier’ and the FBI’s Global Computer Hacking

    How far is the government willing to go to investigate internet crimes? As part of “Operation Pacifier,” the FBI seized a website called Play-pen and launched a computer hacking campaign pursuant to which it distributed at least one million illicit pictures and videos. Colin Fieman, who helped defend several Pacifier cases, offers an overview of the litigation and the kind of sophisticated malware and hacking operations defense lawyers can expect to see with increasing frequency.

    Colin Fieman

  12. Inside NACDL: A ‘Laughingstock Justice System’ That Is No Joke

    It is an abomination that a U.S. general representing an individual at Guantanamo was held in contempt for standing up for the Sixth Amendment right to counsel.

    Norman Reimer

  13. NACDL News: Federal Class Action Challenges South Carolina Sixth Amendment-Free Zones, Builds on Imp

    The American Civil Liberties Union (ACLU) filed a federal class action lawsuit on Oct. 12, 2017, against the city of Beaufort and the town of Bluffton, both in South Carolina. The U.S. Constitution’s Sixth Amendment guarantees that a person accused of a crime has the right to a lawyer, whether or not the individual can afford to hire one. In South Carolina, the bulk of criminal cases are offenses heard in municipal and magistrate courts, collectively referred to as summary courts. As explained in the ACLU press release, the suit challenges “South Carolina municipal courts’ unconstitutional practices of denying lawyers to people who can’t afford private attorneys and are sentenced to incarceration. In the city of Beaufort and the town of Bluffton’s municipal courts, people are prosecuted, convicted, sentenced, and jailed without being provided public defenders, or even advised of their right to counsel, violating the Sixth and Fourteenth Amendments.”

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  14. NACDL News: George D. Perrot Has Charges Dismissed Based on Flawed Microscopic Hair Comparison Analy

    Prosecutors in Massachusetts dismissed charges against George D. Perrot on Oct. 18, 2017. In January 2016, Perrot was granted a new trial based on newly discovered evidence that the FBI’s microscopic hair comparison testimony contained scientifically invalid statements. The errors in the hair comparison testimony in Mr. Perrot’s case were identified through the FBI’s Review, conducted in conjunction with the DOJ and in partnership with NACDL and the Innocence Project. When the new trial was granted, the court found that the hair examiner’s testimony was “enormously influential” and material to the convictions. While prosecutors had originally appealed this court’s ruling, they stated in court documents that “the interests and administration of justice are best served by the termination of prosecution of this matter.”

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  15. NACDL News: Harvard Professor Charles Ogletree Receives Lifetime Achievement Award From Nation’s Cri

    On October 28, NACDL presented Charles Ogletree, the Harvard Law School Jesse Climenko Professor of Law and Founding Director of the Charles Hamilton Houston Institute for Race and Justice, with its Lifetime Achievement Award. NACDL President Rick Jones presented the award at NACDL’s 2017 Fall Meeting in Boston, Massachusetts.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  16. NACDL News: NACDL Endorses Bipartisan Surveillance Legislation, USA RIGHTS Act, Introduced in the Se

    On Oct. 24, 2017, Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.), together with nine additional co-sponsors, introduced the bipartisan USA RIGHTS Act, a bill that significantly reforms warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 surveillance is supposed to target the communications of non-U.S. persons overseas, but often captures purely domestic communications. Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Tex.), and Beto O’Rourke (D-Tex.) introduced a companion bill in the House of Representatives.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  17. NACDL News: NACDL Lauds Senate Introduction of Strong Criminal Intent Legislation

    On Oct. 2, 2017, Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced important legislation to address the erosion of the criminal intent, or mens rea, requirement in federal criminal law, the Mens Rea Reform Act of 2017. As explained in a news release issued by Sen. Hatch’s office, this bill “would set a default intent standard for all criminal laws and regulations that lack such a standard … [and] would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof of a guilty mind.” Sen. Hatch also delivered a speech about the importance of mens rea reform on the floor of the U.S. Senate, citing support from NACDL, the Federal Defenders, and others.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  18. NACDL News: NACDL Past President Barbara E. Bergman Receives Distinguished Achievement Award

    On Oct. 20, 2017, at the University of New Mexico School of Law, NACDL Past President Barbara Bergman was presented with the 2017 Distinguished Achievement Award. The award honors the dedicated service of lawyers and others in the legal community to the UNM School of Law, the New Mexico legal community, and the greater community inside and outside of New Mexico. Past awardees include NACDL Past President Nancy Hollander, Sen. Tom Udall, and the first female justice of the New Mexico Supreme Court, Mary C. Walters.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  19. NACDL News: NACDL Releases Primer on Protecting Digital Devices at the Border

    Customs and Border Protection (CBP) agents search and seize electronic devices at border crossings and ports of entry without a warrant and many times without suspicion. Lawyers crossing the border with a laptop, smartphone, tablet, or other digital devices could be forced to share privilege-protected communications and materials. “Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer’s Primer” will educate criminal defense lawyers about the implications of CBP’s claimed powers and offer strategies that will help them comply with   their ethical obligations and responsibilities to their clients when entering the United States.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  20. NACDL News: National Coalition to Abolish the Death Penalty Hosts Awards Reception

    Oct. 17, 2017 — NACDL Executive Director Norman L. Reimer delivers address at the Annual Awards Reception of the National Coalition to Abolish the Death Penalty (NCADP). Pictured: NCADP Executive Director Diann Rust-Tierney (left) and Norman L. Reimer.

    Ivan J. Dominguez, Alexandra Funk, and Ian Nawalinski

  21. We, the Jury: Peeking Behind the Curtain: Pena-Rodriguez v. Colorado

    Despite strong policy considerations for leaving jury verdicts undisturbed, in Pena-Rodriguez v. Colorado the U.S. Supreme Court determined that in limited situations courts should examine the conduct of jurors during deliberations.

    Thaddeus Hoffmeister