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Fox Rothschild LLP | USA | 7 Feb 2013

Overview agent-witness may not start trial by implicating defendant in charged offense based on testimony not yet admitted

Prosecutors love using summary witnesses, usually their case agents, at trial. As the closing, wrap-up witness, an agent can testify about summary


Fox Rothschild LLP | USA | 20 Dec 2012

Complications in loss analysis lead sentencing judge to abandon restitution altogether and to eschew victim loss in favor of lesser defendant gain in calculating the Sentencing Guidelines

In bank fraud cases, sentencing courts are obliged under the advisory Sentencing Guidelines to fix the "loss" at the greater of actual or intended loss to the victim, and to resort to the (usually more defendant-friendly) lesser gain from the offense only if that loss "reasonably cannot be determined."


Fox Rothschild LLP | USA | 14 Dec 2012

Civil complaint does not by itself prove the occurrence of prior bad acts and so may not be admitted under FRE 404(b) even to prove notice

Under Fed. Evid. 404(b), the government often seeks to introduce evidence of prior conduct by a defendant, ostensibly because such conduct is probative of one of the Rule's permitted purposes for introducing extraneous evidence, such as showing that the presently-charged conduct was committed intentionally and not by accident or mistake.


Fox Rothschild LLP | USA | 8 Nov 2012

Murder victim's earlier out of court statement to social worker about abuse at hands of defendant was admitted without violating confrontation clause because it was "non-testimonial"

As we have previously examined in this space, here, here and here , the Supreme Court’s Confrontation Clause jurisprudence has when considering the admission of a prior statement by a witness most recently focused on whether or not the statement was “testimonial.”


Fox Rothschild LLP | USA | 8 Oct 2012

Securities fraud conviction reversed because trial court failed to allow defendant to introduce co-defendant's prior deposition testimony before CFTC

Often, the government finds itself desirous of introducing the prior civil deposition testimony of a witness who is unavailable for trial, occasionally because the witness is deceased or cannot be located.


Fox Rothschild LLP | USA | 7 Sep 2012

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

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.


Fox Rothschild LLP | USA | 14 Aug 2012

Trials as take-home exercises: deliberating jurors allowed to bring indictment home to study

Normally, trial judges are vigilant in ensuring that every step in a jury's deliberative process takes place within the confines of a single location: the jury deliberation room.


Fox Rothschild LLP | USA | 8 Aug 2012

Seventh Circuit again rejects "tax loss" reduction based on untaken deductions

In a previous post, we explored the views of the Tenth Circuit, seconded by the Second Circuit, that a sentencing court could reduce the "tax loss" charged against a defendant by crediting him with deductions not taken on the filed but false tax returns.


Fox Rothschild LLP | USA | 20 Jul 2012

Testimonial business records -- yet another category for confrontation clause analysis?

This author has on several occasions examined the interesting and unpredictable path traced by the Supreme Court’s recent Confrontation Clause jurisprudence, both in blog posts and in longer form analyses.


Fox Rothschild LLP | USA | 19 Jul 2012

Third Circuit reminds that in criminal cases a joint representation conflict of interest is not avoided simply because the clients consent and waive any conflict

Generally, governing ethics rules permit joint representation under circumstances where, at minimum, the affected clients have full knowledge of the potential for conflict of interest and knowingly waive any such conflict.

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