Category: Federal Criminal Procedure

March 18, 2011

‘Taking the Fifth’ Before Congress: A New Ethics Twist

It’s unethical for a prosecutor to put a witness on the stand in a criminal trial when he or she knows in advance that the witness is going to take the Fifth Amendment and refuse to testify at all. Legal ethics authorities reason that the only effect of that kind of testimony is not to… Read More

March 14, 2011

Brady Violation Leads to Reversal of Conviction in D.C.

Editor’s note: This is a guest blog post by David Deitch, a Washington, D.C.-based litigator and the author of the White Collar Criminal Defense Blog. He can be reached at According to the D.C. Court of Appeals, when it comes to Brady disclosures, late is not necessarily better than never. In Miller v. United States,… Read More

February 22, 2011

Will the Internet Taint a Loughner Verdict?

As Arizona plans a trial for accused Tucson shooter Jared Lee Loughner, a new set of questions has arisen: How will a jury be able to sit in impartial judgment, untainted by nonstop online coverage of the crime and its aftermath? What safeguards should a judge impose to keep the jury from following the case… Read More

December 13, 2010

Stacking the Deck Against Defendants in Conspiracy Cases?

Are prosecutors stacking the deck against defendants in conspiracy cases? A case now on appeal in the Second Circuit is posing that interesting question. On appeal from his conviction in a fake reinsurance deal scheme, former General Re Corporation assistant general counsel Robert Graham is arguing that the government denied him a fair trial by… Read More

November 17, 2010

Time to Make Brady Compliance Part of Prosecutors’ Culture

On Thursday, November 4, 2010, Rod Rosenstein, the U.S. Attorney for Maryland, defended the U.S. Department of Justice’s recent efforts to address its compliance with Brady v. Maryland, the 1963 Supreme Court case requiring prosecutors to disclose information that would tend to exculpate criminal defendants. Rosenstein, speaking before a group of defense attorneys at an… Read More

October 13, 2010

Is a GPS Device Covered Under the Fourth Amendment?

Can prosecutors attach a Global Positioning System device to a criminal suspect’s car without a warrant in order to track his movements for weeks or even months? The D.C. Circuit answered this very 21st-century criminal procedure question last August with a resounding “no.” An ideologically diverse panel composed of Judges Douglas Ginsburg, David Tatel, and… Read More

September 28, 2010

Too Little, Too Late for Defense Argument?

The U.S. Court of Appeals for the 1st Circuit is considering whether the government’s belated disclosure of potentially exculpatory evidence deprived criminal defendant Amit Mathur of a fair trial. The fact that Mathur’s counsel received some of the evidence after the government’s case in chief and declined to use it in Mathur’s defense makes it… Read More

September 27, 2010

Fourth Amendment the Loser in BALCO Ruling

A recent ruling of the U.S. Court of Appeals for the 9th Circuit is a win for Major League Baseball players whose drug-testing records must now be returned to them after they were improperly seized in a 2002 federal steroids probe. But it’s not a win for Fourth Amendment values. In a September 13, 2010,… Read More

August 6, 2010

Is DOJ Using Too Many Deferred Prosecution Agreements?

The Senate Judiciary Committee recently held confirmation hearings for Jim Cole, a partner at Bryan Cave and well known D.C. white-collar defense lawyer, who is President Obama’s nominee for deputy attorney general. During the confirmation hearings, an interesting back-and-forth occurred between Cole and Sen. Jeff Sessions (R-Ala.) regarding the use of deferred prosecution agreements. Sen…. Read More

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