Category: Trials

The Use of Cooperating Witnesses in Federal Prosecutions

Pace Law’s Distinguished Fellow in Criminal Justice Mimi Rocah recently appeared on the “Law & Crime” network to discuss the government’s use of a cooperating witness with host Caroline Polisi. Ms. Rocah explained the process of using a cooperating witness in a federal prosecution. Although a cooperator must first plead guilty to the highest possible crime (and possibly other unrelated crimes), the incentive to cooperate in a federal investigation is significant. If the government finds that the cooperator has information against more culpable parties and they testify truthfully, the government will ask the judge to sentence the cooperator below the mandatory minimum under the sentencing guidelines. See the interview here.

May Decisions from the NY Court of Appeals

Several interesting criminal procedure decisions were handed down in May by the New York Court of Appeals:

People v. Stone2017 N.Y. Slip Op. 03559, 29 N.Y.3d 166 (May 4, 2017) (Court’s PDF) – Conviction affirmed where the defendant argued his right to confrontation was violated where a detective was permitted to testify that an unavailable witness had identified the defendant. The Court held that the trial court “eliminated any prejudice to defendant by striking the offending testimony from the record and instructing the jury to disregard the statements.”

People v. Bushey29 N.Y.3d 158, 53 N.Y.S.3d 604 (May 4, 2017) (Court’s PDF) – In this case, the Court held that a police officer may run a car’s license plate number through the government database without any suspicion of wrongdoing; that this does not constitute a search, and that any information obtained as result of such inquire may form probable cause for the police officer to stop the vehicle.

People v. Smalling, 29 N.Y.3d 981, 75 N.E.3d 665, 53 N.Y.S.3d 248 (May 2, 2017) (Court’s PDF) – In this case, the Court reversed a conviction and ordered a new trial where the trial court had agreed not to give a jury instruction on constructive possession but then ultimately did give such an instruction.

NY Court of Appeals Addresses Cross-Racial Identification Jury Instruction

As NYLJ reports in an article titled Ex-Judges and Prosecutors Ask to Join Case on Cross-Racial Identification written by Andrew Danney, the NY Court of Appeals, sitting in White Plains courthouse starting noon today through Thursday, is to hear a case addressing jury instruction on cross-racial eyewitness identification and number of members of the New York legal community seek to become amici parties to the case.

As the legal representative for the group stated:

We tell juries everyday that they should scrutinize testimony carefully, so it’s not a great leap to ask a trial judge to tell a jury that they should look at cross-race identifications with special care.

 

New Jersey Overhauls Its Bail System

Effective January 1, 2017, New Jersey began implementing its newly revised bail system (P.L. 2014, Ch. 31 known as the “Bail Reform Law”).  As judges do under the Federal Bail Reform Act, New Jersey judges will now focus on whether an accused presents a significant flight risk, is threat to public safety, or both when deciding whether to detain the accused while awaiting trial.

A study by the Drug Policy Alliance in New Jersey, released in 2013, found that 39 percent of inmates were eligible to be released on bail, but that many could not meet amounts as low as $2,500.

The new system, of course, is not without controversy. While striving to achieve fairness and alleviate the overloaded system, many (particularly those in the bail bond business) rally against it stating that dangerous offenders are released out on the streets. But “judicial officials reject the idea that dangerous criminals are flooding communities.”

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