Investigative Omission Defenses, featuring Lisa J. Steele. Slides and article attached.

NACDL opposes categorical, legislative prohibition of specific defenses.

When the prosecution decides not to use a readily available and superior method of proof to link the defendant with the criminal activity, the defendant should be able to comment on the absence of such evidence. If the jury sees the investigation as unreasonable and can reasonably infer that the missing evidence might have been exculpatory, then defense counsel has a solid investigative omission defense.

Written statement of NACDL immediate past president Nina J. Ginsberg to the Virginia House of Delegates Courts of Justice Committee regarding a proposed bill to categorically prohibit the use of specific defenses in criminal cases (see HB 2132).

NACDL President Nina J. Ginsberg's written statement to the Washington, D.C. City Council Judiciary and Public Safety Committee regarding proposed legislation to prohibit "panic" defenses in criminal cases.

What can defense lawyers do to improve alibi defenses?

A template document for a court notice of intent to present evidence of insanity at the time of offense. 

This page contains materials and information related to particular criminal defenses. 

The stash house sting — in which an undercover officer or an informant recruits suspects to “rob” a fictional location where drug dealers allegedly keep large amounts of drugs — is increasingly used by both state and federal law enforcement. Law professor and former county public defender Katharine Tinto describes the various tools and claims defense attorneys can use to fight these stash house cases. 

In an attempt to find child predators, police officers visit Internet chat rooms and pretend to be underage. When arrested in these sting operations, most defendants plead guilty. But the chat room is a world of sexual fantasy. Did the defendant believe he was communicating with another adult who was pretending to be a child within the sexually charged atmosphere of an adult chat room?

NACDL amicus curiae brief in support of appellant.

Argument: Knowledge, in a criminal statute, is actual knowledge, not what one ought to have known or could have learned.

Amicus curiae brief of the National Association of Criminal Defense Lawyers.

Argument: A defendant’s withdrawal from a conspiracy during the statute of limitations period negates and element of a conspiracy charge such that, once a defendant meets his burden of production that he did withdraw, the burden of proof rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period. The requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt is a defendant’s foremost safeguard against a wrongful conviction. The defendant’s withdrawal defense negated the “participation” element of the conspiracy, and relieving prosecutors of their burden to prove a defendant’s mental state substantially undermines the fairness of the trial by diluting one of the most important protections against wrongful convictions.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant David Newland.

Argument: Exceptions to statutes of limitations should be narrowly construed. The Wartime Suspension of Limitations Act (WSLA) should only apply to war frauds. The WSLA should only apply to pecuniary frauds. Fairness further requires narrow construction of WSLA. Strict construction of the 2008 act is needed because modern authorizations of the use of military force would otherwise allow an unintended indefinite suspension of statutes of limitations. Application of the WSLA would render the defense of withdrawal from a conspiracy a nullity. 

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners

Argument: State courts may not discriminate against federal defenses. The Supremacy Clause requires state courts to adjudicate federal law when applicable. Where state courts have attempted to escape their constitutional duty to apply federal law, this Court has repeatedly held them accountable. Federal defenses based on incorporation are not exempt from the non-discrimination rule.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Reversing Money Laundering Convictions of Appellant, James Michael Farrell

Argument: The use of willful blindness as a substitute for actual knowledge, without an appropriate factual basis, lowers the government’s burden of proof and infringes a defendant’s due process rights. Prosecuting criminal defense attorneys for money laundering under a willful blindness theory threatens clients’ Sixth Amendment rights and creates and ethical conflict for attorney defendants. The use of Section 1956 to prosecute criminal defense lawyers has significant, negative policy implications. Section 1956 should not be used to charge criminal defense lawyers in contravention of Department of Justice policy, robbing them of the protection of an otherwise applicable safe harbor. The requirement of proving concealment under Section 1956 is not a meaningful basis for avoiding the otherwise applicable Section 1957 safe harbor.