Articles Tagged with “Confrontation Clause”

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Prosecutors often accuse defense attorneys, and our clients, of using unduly narrow interpretations of the law to justify conduct that hasn’t expressly been ruled illegal.  Who among us hasn’t heard the government invoke some variation of “the absence of an explicit prohibition doesn’t bar a prosecution”?  In other words, says the government, “it’s not okay just because no one told you it isn’t.”

The Third Circuit turned that argument around on the government recently, in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016).  A prosecutor in the Western District of Pennsylvania had a bright new idea:  use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify.  The innovative prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge promptly and expressly relied when imposing sentence.  Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.

On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.”  The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below). Continue reading →

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It’s generally a slow time of year between Christmas and New Year’s, but the federal circuits have been busy. But who wouldn’t want to start the year with a remand in a criminal case (other than the government)?

Since we were off last week, here are the wins from the last two weeks in the federal circuits.

Happy New Year!

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It would be hard to overstate the impact of the Supreme Court’s recent cases on the Confrontation Clause.

Starting with Crawford v Washington, the Court has given much more meat to the requirement that if testimony is going to be used against someone in a criminal case, the person giving the testimony has to be in the courtroom and actually testifying.

Some of these changes are slow moving. Even though Crawford was decided in 2004 – whether business records provide an exception to the confrontation requirement has been a little unclear. Happily, the First Circuit clarified that business records are not automatically excluded from the Confrontation Clause.

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It’s a slow week here in the federal circuit courts, at least for people accused of a crime who won their cases – only three cases were reversed in the federal court of appeals in published opinions last week.

Happily, what last week’s opinions lost in quantity they made up in quality.

Judge Posner weighed in on restitution in child porn cases. Always a fun writer to read.

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Imagine the following facts – a man is accused of a crime. The government introduces testimony from a scientist about testing of an item recovered by the police.

The scientist isn’t the one who tested the evidence – he works in the same lab as the woman who did the tests. The scientist has read the lab reports from the woman who did the tests. He testifies that the item is what the government says it is. Moreover, because he knows how chain-of-custody is handled in his office, he testifies that the item that was tested is the same one that was taken off the person accused of a crime.

1314903_medical_doctor.jpgThe defendant never has a chance to cross-examine the person who actually tested the item – the results of the test come into evidence through the testimony of the person who just read the reports of the testing.