Door Opening
by Jill Paperno, author of Representing the Accused: A Practical Guide to Criminal Defense “Knock, knock.” “Who’s there?” As defense attorneys we often face (and dread) the claim that we have somehow “opened the door” to previously excluded evidence during a hearing or trial. Sometimes we recognize we did it inadvertently as testimony begins in response to a question. Sometimes the hungry grin of opposing counsel tips us off. Sometimes we are blindsided by...
read moreChallenging the Use of Recorded Conversations of Pretrial Detainees
Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that the People’s use at his criminal trial of excerpts from...
read moreReversal for Prosecutorial Misconduct Seems Preferable to Reversal for Ineffective Assistance of Counsel
Last week’s post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client’s reversal. But...
read moreRandom Musings on Trying a Child Sex Abuse Case
by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense A while back, after I completed a child sex trial, I wrote a post on this site as to Tactics to Consider in Trying a Child Sex Case. After a few years more experience, including a child sex trial this past week, there are some additional tactics and strategies I would like to share. There are certain things we can expect in...
read moreSelective Silence of Defendant Cannot Be Used in Prosecution’s Case In Chief
by James Eckert, Monroe County Assistant Public Defender The Court of Appeals, Fahey, J. writing for the court, held: “as a matter of state evidentiary law, that evidence of a defendant’s selective silence generally may not be used by the People as part of their case-in-chief, either to allow the jury to infer the defendant’s admission of guilt or to impeach the credibility of the defendant’s version of events when the defendant has not testified.” (People v...
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