trial tactics

Critical defense exhibits excluded for failure to comply with Rule 16(b) reciprocal discovery obligations

January 01, 2010 19:48

Federal Rule of Criminal Procedure 16(b) imposes discovery requirements on the defense which are triggered when the government complies with its own, initial disclosure obligations. Some defense counsel treat the reciprocal obligation as more or less voluntary, betting that they will be spared the...

Trial court may cut off cooperator cross-examination on need for "truthfulness"

Alain Leibman
June 08, 2009 19:05

Typically, cross-examining a cooperator regarding the impact of the Sentencing Guidelines (e.g., its reduction of, say, a five-year exposure on each mail fraud charge in an Information to nothing more than 12-18 months in the aggregate even before a downward reduction) or the intricacies of a 5K1.1...

Temporal delay between underlying fraud and subsequent wire transfer dooms wire fraud theory

Alain Leibman
April 29, 2009 19:45

The Ninth Circuit recently reversed wire fraud convictions on the ground that the wire transfers upon which the 18 U.S.C. § 1343 charges were based occurred so long after the underlying activity was completed that the transfers could not be said to be "in furtherance" of a fraud....

Severance granted based on disparity in weight of evidence

Alain Leibman
September 29, 2008 18:05

Practitioners in this area are wearily familiar with the Zafiro standard for granting severance under FRCP 14: there must be a serious risk that a joint trial will compromise a specific trial right of one of the defendants, or prevent the jury from reaching a reliable verdict. The risk of spillover...

Expert testimony to negate mens rea still admissible despite Insanity Defense Reform Act

Alain Leibman
September 29, 2008 18:01

The Insanity Defense Reform Act, 18 U.S.C. § 7 generally bars expert testimony to established a diminished capacity defense, if that lessened capacity falls short of demonstrating insanity. However, the Act, as construed by the courts, effects a bar only as to a complete defense predicated on...