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Law enforcement officers may be impeached with prosecutors' inconsistent charging decisions

Fox Rothschild LLP
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USA
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September 7 2012

In an important decision for the right to a fair trial, the Second Circuit recently held that a detective -- testifying against the only charged defendant in a case involving the seizure of weapons from a minivan occupied by several persons besides that defendant -- could be impeached with prosecutors' initial decision to charge other occupants of the vehicle with possession of those firearms

The responsible corporate officers doctrine -- powerful tool for prosecutors

Fox Rothschild LLP
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USA
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March 27 2012

I was privileged on Saturday, March 24th, to speak as part of a panel addressing the ABA Business Law Section's annual meeting in Las Vegas, Nevada on the subject of "New and Evolving Threats from the Responsible Corporate Officers Doctrine."

Going well beyond current federal jurisprudence, New Jersey's Supreme Court strikes down gag provisions in plea agreements

Fox Rothschild LLP
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USA
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October 3 2011

A recent post discussed a Second Circuit decision which prevents prosecutors from penalizing a pleading defendant who challenges an upward adjustment under the Sentencing Guidelines, holding that prosecutors may not deny such a defendant the extra, third-point reduction for acceptance of responsibility simply because he forced the government to defend its position at a sentencing hearing

Second Circuit criticizes practice of denying third level reduction for acceptance of responsibility to defendants who demand sentencing hearings

Fox Rothschild LLP
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USA
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September 26 2011

Federal prosecutors are seemingly encouraged by the DOJ to use their leverage to extract concessions from defendants who wish to limit their sentencing exposure in connection with negotiated pleas of guilty

Third Circuit abandons "rule of consistency" in conspiracy cases, upholds conviction of one conspirator even though his only co-conspirator was acquitted

Fox Rothschild LLP
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USA
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September 22 2011

Conspiracy law historically has borne a number of common law doctrines, all developed long ago and all aimed at reducing the expansive reach and draconian implications of conspiracy charges

The great unwritten rule of cross-examination - impeachment by contradiction

Fox Rothschild LLP
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USA
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June 13 2011

We previously explored the wonderfully amorphous evidentiary doctrine known as "impeachment by contradiction"

The ties that don't bind -- when a commitment solely to recommend a particular sentence allows the prosecutor to become a stealth advocate for more jail

Fox Rothschild LLP
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USA
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May 6 2011

The courts of appeal have since Santobello v. New York, 404 U.S. 257 (1971) applied rules of contract construction to hold prosecutors fairly strictly to the terms of their plea agreements, even employing equitable devices such as specific performance to impel accomplishment of the promised terms

Evidence derived from violation of attorney-client privilege not subject to Kastigar taint hearing or to suppression under fruit-of-the-poisonous tree doctrine

Fox Rothschild LLP
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USA
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January 18 2011

A recent Sixth Circuit case exposed Enzyte, a widely-promoted male performance-enhancing product, as a fraud (see previous post here

"Inextricably intertwined misconduct" -- narrative glue or prosecutive end-run around Rule 404(b)?

Fox Rothschild LLP
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USA
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January 13 2011

Federal Rule of Evidence 404(b), and its state analogs, place limits on the prosecution's ability to admit damaging evidence about a defendant by requiring that the evidence of hisher other bad acts be moored to a permissible purpose illustrated in the Rule

Overcoming a too general search warrant? Government need only say "see attached affidavit"

Fox Rothschild LLP
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USA
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March 25 2010

There are several recurring instances in the practice of criminal law where the use of particular terminology in the right circumstance makes the difference between an action which is unconstitutional or improper and one which is not, e.g., effectively invoking the right to counsel under the Fifth Amendment; saving an indictment from a fatal flaw by using the disjunctive or conjunctive to connect its means and methods; saving a co-conspirator statement under Bruton and the Sixth Amendment through the application of the correct pronoun