Monday, February 14, 2011



Deciding to Try the Case

Many defendants know from the moment they are charged or arrested they will be going to trial. A guilty plea is wrong for the innocent. For other defendants, the government's position makes it impossible to accept the consequences of a guilty plea.

Know Your Opponent

The government is a powerful opponent. Defendants with no prior federal court experience are surprised by the resources the government devotes to prosecuting the case. Assistant US Attorneys have far fewer cases than their state-court counterparts and usually only a few cases a year and they have longer and more sophisticated professional background and experience than their state-court counterparts.

The Jencks Act

Defendants preparing for a federal trial are surprised to learn that the government is permitted to withhold witness reports and statements until the witnesses have testified at trial. Originally, the Jencks case reversed a defendant's conviction where the government had withheld prior statements of testifying FBI agents even though the defendant had not shown that the prior statements were inconsistent with trial testimony. Jencks v. United States, 353 U.S. 657 (1957). The Jecks ruling was a step forward in defendants' rights when Justice Brennan wrote the decision over fifty years ago. The name Jencks, however, has since come to stand for the statute that Congress passed in the wake of the Jencks decision. The Jencks statute allows the government to withhold potentially helpful grand jury testimony and witness statements until trial. 18 USC §3500. "…no statement or report … made by a Government witness …shall be the subject of … discovery, or inspection until said witness has testified on direct examination in the trial of the case." In practice, the government tends not to withhold Jencks material because the defense can create adverse consequences for exercising the right of late disclosure. The Local Rules in many Districts require the government to disclose Jencks material reasonably in advance of trial.


The Federal Rules of Evidence ("FRE") govern the presentation and admissibility of evidence at trial. The FRE are one of the largest and most involved subjects of expert legal commentary. Two of the more frequent defense evidentiary struggles involve the government's attempts to introduce hearsay statements from co-conspirators and evidence of defendant's "bad character". Nearly every successful defense trial strategy means thwarting the government’s plans to introduce these types of unduly prejudicial evidence.

Uncharged Misconduct & Prior Convictions - Bad Character Evidence

The government usually tries to gain advantage in the complex give and take of a criminal trial by proving a defendant's involvement in other crimes or specific instances of bad conduct. This is a species of evidence is sometimes known as "uncharged misconduct" or "prior bad acts" and its uncontested introduction can deny defendant a fair trial by poisoning the jury's impartiality with bad character information. As a general rule, evidence of character is not admissible to prove that the defendant acted in conformity with his character. FRE Rule 404(a). (The defendant may introduce evidence of his own good character, but then the government is free to introduce contrary character evidence.) Particularly, evidence of the commission of other crimes to show that defendant acted in conformity with his criminal character is a prohibited.

There are numerous exceptions, however, to the simple prohibition on evidence of a defendant’s bad character. Evidence of commission of prior crimes can seep into the trial for other purposes. The problem for the defense arises when the uncharged misconduct is connected with other relevant evidence. The most frequent instances are evidence of other criminal acts to show motive, intent, opportunity, preparation, planning and schemes, knowledge, defendant's identity and the absence of mistake. Federal Rules of Evidence Rule 404(b). In these instances, the evidence of other crimes usually is indirect. Consider, for instance, testimony by an FBI agent that the defendant was being investigated for bank fraud when the defendant allegedly lied to the agent and bank investigators or that defendant did not make an innocent reporting because defendant had prior fraud convictions. Or consider testimony by a DEA agent that he had witnessed the defendant's appearance on drug charges a month earlier and was therefore able to identify him. Whether true or not, such testimony creates an impression that the defendant has been in trouble before for the same or related conduct and that he must almost certainly be guilty. Such evidence should be excluded when merely offered to show that a defendant acted "in conformity" with his criminal character. FRE Rule 404(a).

Excluding Character Evidence as Irrelevant, Not Probative & Unfairly Prejudicial

Character evidence is nearly always offered as evidence of something else. The evidence is supposed to be - and is most often not - probative of an issue other than character. Even where the trial court finds that the evidence is probative of some issue other than character, the defendant can often show that "probity is substantially outweighed by the danger of unfair prejudice". FRE Rule 403. Many objective factors about the evidence are weighed in the contest over its admission. That the evidence is harmful and embarrassing to the defendant and that the prosecutor scores points with the jury does not make the evidence unfairly prejudicial. The older and more remotely connected the evidence is with the case, the less likely it will be admitted. Likewise, the sharper the prejudice the less likely it will be admitted, for example, evidence that would show defendant had been involved with conduct similar to the crime charged. Prejudice means that the use of the evidence is unfair and risks inflaming or confusing the jury. Every case may be different, but the case law has usually encountered facts substantially similar to the defendant's case. A successful defense objection often involves anticipating the government's tactic and having a citation to applicable case ready during trial.


A trump card prosecutors usually play is the conspiracy count; the defense should be prepared to finesse. Whether a sophisticated fraud and racketeering prosecution or an ordinary drug distribution case, the conspiracy charge presents unique obstacles and opportunities. (The general conspiracy statute is found at 18 USC 371, but there are special conspiracy counts in specific criminal statutes.) A conspiracy charge allows the prosecution to offer police testimony about hearsay statements of co-conspirators as evidence, sometimes denying the defendant an opportunity to challenge the statement through cross examination. Conspiracy tend to raise the problem of guilt by association, using otherwise inadmissible hearsay statements of some conspirators against all defendants.

There are hazards for defendant in a conspiracy trial can also backfire in a more abusive prosecution. Consider that the government's star witness was often the leader of the conspiracy. Joinder can mean trial of the least with the most culpable defendants with testimony stretching about what the guilty principal actors did - sometimes who are still at large or who are testifying for the prosecution.

One remedy for a conspiracy indictment is severance, that is, obtaining a separate trial from the co-defendants. The defendant has a right to move for relief from "prejudicial joinder" (a joint trial of defendants that prejudices the right of an individual defendant). The trial court has the power to grant a severance in the exercise of its discretion. While the Court's discretion is broad, relief is frequently not granted. The law and the court system tend to favor joint trial of conspiracy defendants for reasons of efficiency. The defendant is, however, entitled to relief where is makes a showing that his defense is "mutually antagonistic" with that of his co-defendants.

Defense counsel has important duties and effective methods for protecting his client from the hearsay statements of co-conspirators. The mere existence of a conspiracy charge does not settle the issue of whether a co-conspirator statement is admissible evidence. The hearsay statements themselves are not sufficient to prove conspiracy. "If it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy, the hearsay is admissible." US v. Petrozziello, 548 F.2d 20 (1 Cir. 1977). As the government offers evidence of hearsay statements, counsel objects and requests a cautionary instruction to the jury not to consider the statement against counsel's client. The court may conditionally admit the hearsay and inform the parties on the record out of the hearing of the jury that “(a) the prosecution will be required to prove by a preponderance of the evidence that a conspiracy existed, that the declarant and defendant were members of it at the time that the declaration was made, and that the declaration was in furtherance of the conspiracy, (b) that at the close of all the evidence the court will make a final Petrozziello determination for the record, out of the hearing of the jury; and, (c) that if the determination is against admitting the declaration, the court will give a cautionary instruction to the jury, or, upon an appropriate motion, declare a mistrial if the instruction will not suffice to cure any prejudice.”


Counsel's ability to attack the credibility of government law enforcement witness is a function of experience, thorough preparation and ingenuity. The government's case often consists of agents and so-called special agents - police assigned from state and local forces to work with DEA, FBI and DHS task forces. It is often possible to find inconsistent histories of these officers with investigation and reference to closed-list attorney resources. Counsel must be sure to obtain the relevant Freedom of Information Act copies of relevant manuals and use these to test the thoroughness and correctness of the police investigation. Very often, the failure to follow established investigative procedure coincides with defense theory. (For example, defendant is startled by the FBI's unannounced visit to his home. Did the agents follow the agent manual's protocol for such an interrogation? If the agent has not followed the relevant interview protocol -designed to obtain accurate information from a subject - the jury will be less likely to agree that the defendant has obstructed justice.)


The key to successful confrontation of a government informant at trial is finding the background information the government does not have or refuses to disclose. Informants are almost always criminals themselves and sometimes they are seasoned criminals with multiple identities and histories of conviction for serious crimes. Informants sometimes withhold personal information from and deceive their law enforcement handlers with the result that the government is surprised by defense impeachment of the government witness.


THIS IS GENERAL INFORMATION AND NOT LEGAL ADVICE. This website contains generalized information about criminal defense. The texts on this website were written to advance the reader’s awareness in a general way about the defense of a federal criminal case. This material should not be used as legal advice.