~ Leverage Through Disocovery ~

Bertule, Knight, Tiedemann and Other Matters Related to Discovery and Admission of Evidence

Edwin S. Wall

edwin@edwinwall.com

The Gambit

Gambit: A chess opening in which a player sacrafices material with the hope of achieving a resulting advantageous position.

▪Opening▸Set

▪Middle Game▸Pins▸Forks▸Sacrifices

▪End Game▸Execution

Thinking of a case in chess terms.

Opening~ Requests ~

Set: Positioning pieces so that they are ready to play out desired strategies.

▪Request for Discovery

▪Request Witness Statements

▪Request for Notice of 404(b) Evidence

▪Request for Notice of Experts

▪Request for Preservation of Evidence▸Writings▸Recordings▸Photographs

▪Request Notice of Promises of Leniency

▪ & Prior False Statements

Request for Discovery▪Rule 16 Discovery

(1) Except as otherwise provided, the prosecutor shall disclose to the defense upon request the following material or information of which he has knowledge:

(2) the criminal record of the defendant;

(3) physical evidence seized from the defendant or codefendant;

(4) evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment; and

(5) any other item of evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare his defense.

Witness Statements

Prior Statements of Witnesses

U.R.Crim.P 16,. F.R.Crim.P. 16 - Silence

Rule 612, U.R.E.

Need Not Show Witness Statement

Request Required for Disclosure to Counsel

F.R.Crim.P. 26.2, Jencks Act 18:3500

Disclosure After Witness Testifies

Reqeuest Disclosure

Move for a Recess/Continuance

Request for 404(b)

Rule 404(b) Crimes, Wrongs or Other Acts

Evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Must request Notice

Prosecutor Must Provide Notice

1. General nature of evidence,

2. Before Trial

Hearing: Question of Admissibility

Request for Experts

State - Statute 77-17-13

30 Notice Before trial, 10 Day Notice Before a hearing.

Name, Address, CV and one of the following:

• Expert’s Report,

• Writen Explanation of Testimony,

• Notice of Availablity to Consult.

Must Request Test Results 77-17-13(2)

• Continuance

• Bad Faith, Sactions

• Deliberrate, Exclusion

(URE 705 - Disclose facts and data on cross-examination)

Discovery on Experts - Mentors & References

Promises of Lenieny & Prior False Statements

Giglio v. United States, 405 U.S. 150, 94 S.Ct. 763 (1972)

State v. Bakalov, 979 P.2d 799 (Utah 1999)

When reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within rule that suppression of material evidence justifies a new trial irrespective of good faith or bad faith of the prosecution.

Move for an Affirmative Duty to Inquire

Ask Witness if Inquiry was Made/False Statements.

Middle Game~ Motions ~

Pin: Prevent Movement.

Fork: Simultaneous Options.

Sacrifice: Forfeit to Gain Advantage.

▪Suppression of Evidence - Miranda

▪Discovery Requests - Knight

▪Destruction of Evidence -Youngblood/Tiedemann

▪Search Warrants -Franks/Nielson

▪Expert Evidence -Daubet/Maestas

▪Conspiracy Statements - James/Gray

Suppression

Miranda Revisited – Suspect Must First be Informed in Clear and Unequivocal Terms of the Right to Remain Silent as an Absolute Prerequisite in Overcoming Pressures of Interrogation Atmosphere. Miranda v. Arizona, 384 U.S. 436, 468 (1966).

“[S]uch a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury.”

Entrenchment of RightsMaryland v. Shatzer, 130 S.Ct. 1213 (2010)

Eternal Prophylaxis Too Long Edwards right to counsel was recongnized as aprophylaxis, not a constitutional mandate. Id. at 1224. Concern -"Edwards prohibition of custodial interrogation of a particular suspect would be eternal." Id. at 1222.

Break in Custody RuleOnce a suspect has been out of custody for 14 days, the coercive effect is eliminated and permitting law enforcement to initiate and then interrogate a suspect who has made a valid waiver of his Miranda rights. Prision is not custody if it is home.

Presumption of InvoluntarinessEdwards establishes a presumption that a suspect's waiver of Miranda is involuntary, and is still free to claim waiver of Miranda rights was involuntary under Johnson v. Zerbst, 304 U.S. 458 (1938). Shatzer, 130 S.Ct. at 1223 n. 7.

Notice of Assertion of Right to Counsel Motion to Entrench Right to Counsel U.S. v. Angilau, 2:08-cr-758-TC-6

Discovery RequestsState v. Knight, 734 P.2d 913 (Utah 1987)

When the State is Not Compelled to Produce Discovery by Court Order,

If it responds voluntarily to a request it must respond in a manner that will not be misleading.

1. The prosecution either must produce all of the material requested or must identify explicitly those portions of the request with respect to which no responsive, and

2. when the prosecution agrees to produce any of the material requested, it must continue to disclose such material on an ongoing basis to the defense.

Request Discovery and Move to Compel Produciton.

If you do not move to compel evidence,

The prosecutor does not have to give it to you!

Destruction of EvidenceState v. Tiedemann, 162 P.3d 1106 (Utah 2007)

Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988)

Trial Court to Consider Materiality and Importance of Evidence, to determine whether to dismiss the charges.

Defense must show a reasonable probability the lost or destroyed evidence would be exculpatory, then court considers the following to determine whether to dismiss:

1. The reason for the destruction or loss of evidence, including the degree of negligence or culpability of the State; and,

2. The degree of prejudice to the defendant in light of the materiality and important of the missing evidence in the context of the case as a whole, including the strength of the remaining evidence.

Tiedemann: The prosecutor’s good faith is not material to the whether the prosecutor has violated their discovery duties, good faith ignorance does not excuse non-disclosure.

Spoliation!

Spoliation of Evidence occurs when either the chain of custody for evidence is not maintained or the evidence is not kept in its originbal and unaltered condition.

In civil cases, when there is spoliation of evidence, the jury is instructed that they may make and adverse inference against the party that failed to properly maintain the evidence. There is an abundance of spoliation case law relating to civil cases in both state and federal courts.

Spoliaition has not been adoped in the criminal law context, but arguably should be. It is submitted, where law enforcement does not properly maintain evidence, if the court admits the evidence the defense should be entitled to a spoliation instruction.

Citation: Henning v. Union Pacific R. Co. 530 F.3d 1206, 1219 (10th Cir. 2008)(stating, “courts require evidence of intentional destruction or bad faith before a litigant is entitled to a spoilation instruction.” Emphasis added). Samuels v. United States, 397 F.2d 31 (10th Cir. 1968)(inference held against defendant). Spoliaiton Instruciton offered in U.S. v. Hood, 1:07-cr-78 DS

Search WarrantsFranks / Nielson

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978)

State v. Nielsen, 727 P.2d 188 (Utah 1986)

If, after evidentiary hearing, defendant establishes by a preponderance of evidence that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by affiant in search warrant affidavit, and, with affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, search warrant must be voided and fruits of search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Hearing Determines Whether the Officer Lied Under Oath.

Expert EvidenceDaubert / Maestas

Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786 (1993)(scientific evidence); Kumho Tire Co. V. Carmichael, 526 U.s. 137, 119 S.Ct. 1167 (1999)(all expert testimony)

State v. Maestas, 299 P.3d 892 (Utah 2012)

State v. Quintana, 103 P.3d 168 (Utah App. 2004)

(Fingerprints not novel scientific evidence).

Trial court acted within its discretion in admitting expert testimony on fingerprint identification evidence, despite argument that such evidence was unreliable, where defense counsel did not present any expert testimony asserting either that fingerprint evidence was generally unreliable or that fingerprint identification methods were not properly applied in this case.

Hearing: Expert Witness - URE 702(b) & (c)

Preliminary Question - URE 104

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Conspiracy StatementsJames / Gray

United States v. James, 590 F.2d 575 (5th Cir. 1979)

United States v. Thornburgh, 645 F.3d 1197 (10th Cir. 2011)

United States v. Gray, 717 P.2d 1313 (Utah 1986)

An out-of-court statement by alleged coconspirators is admissible during criminal prosecution of and against one such conspirator, if proof is made by the preponderance of the evidence that there was conspiracy and that the statement was made during course and in furtherance of the conspiracy, and declarant and defendant were members of conspiracy. URE & FRE 801(d)(2)(E).

James Hearing -

Statements and Conspiracy Structure.

End Game~ Trial ~

Execution: Acting on a strategic positioning.

▪Crimes, Wrongs & Other Acts

▪Preliminary Questions

▪Judicial Notice

▪Privilege

▪Personal Knowledge

▪Prior Statements

▪Police Reports

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Preliminary Questions

Preliminary Questions - URE 104

Witness Qualification

Evidence Admissiblity

Evidence Dependent on Existence of Fact

Hearing Required:

Outside of Presence of Jury

Judicial Notice

Judicial Notice

Must Take Judicial Notice if Party Requests and Supplies Necessary Information.

Hearing:

Opportunity to Be Heard.

Privilege

Husband-Wife URE 502

Clergy URE 503

Lawyer-Client URE 504

Government Informer URE 505

Physician and Mental Health Therapist URE 506

Privilege – Miscellaneous Matters 510

Hearing Outside Presence of Jury

Personal Knowledge

Personal Knowledge Foundation - Evidence Sufficient to Support Finding of Personal Knowledge.

URE 602 Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Voir Dire the witness!

Prior Statements

Prior Statements of Witnesses

Rule 16, U.R.Crim.P. - Silence

Rule 612, U.R.E.

Need Not Show Witness Statement

Request Required for Disclosure to Counsel

Prior Admissions of the Defendant - Voluntariness

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 (1964)

State v. Mabe, 864 P.2d 890 (Utah 1993)

Hearing Required on Voluntariness

Police ReportsState v. Bertul, 664 P.2d 1181, 1185-1186 (Utah 1983)

Admissible if Offered by the Defendant

803(6) - Business Records

803(8) - Public Records

Reversible if Offered by the Prosecution

“[P]olice reports of crimes should ordinarily be admitted when offered by the defendant in a criminal case to support his defense. When offered by the prosecution, however, they should ordinarily be excluded, except when offered to prove simple routine matters which are based on first-hand knowledge of the maker of the report and do not involve conclusions, and when the ‘circumstances of their preparation indicate their trustworthiness.” Burtul at 1185-1186

Police ReportsState v. Bertul, 664 P.2d 1181, 1185-1186 (Utah 1983)

Admissible if Offered by the Defendant

803(6) - Business Records

803(8) - Public Records

Reversible if Offered by the Prosecution

“[P]olice reports of crimes should ordinarily be admitted when offered by the defendant in a criminal case to support his defense. When offered by the prosecution, however, they should ordinarily be excluded, except when offered to prove simple routine matters which are based on first-hand knowledge of the maker of the report and do not involve conclusions, and when the ‘circumstances of their preparation indicate their trustworthiness.” Burtul at 1185-1186

Sentencing

Evidence-Based Practices77-18-1(5)

Post Conviction Risk Assessment (PCRA)

Pretrial Trial Risk Assessment (PTRA)

Pre-Sentence Risk Assessment ?

Discovery and Disclosure

Conclusion

Nil Desperandum!

Never Give Up!Edwin S. Wall, P.C.

Edwin S. Wall

Kelly A. Fowler

9 Exchange Place, Ste. 650

Salt Lake City, Utah 84111

(801) 746-0900 edwin@edwinwall.com