On Saturday, February 10, 2018, the Pace Law Advocacy Program held its first-annual 1L Opening Statement Competition. The walk-on competition afforded 1Ls the opportunity to experience a mock courtroom with a mock jury. In the preliminary rounds, the students delivered openings for both sides of a homicide case with an identity issue. The fact pattern was from a previous Queens District Attorney’s Office Mock Trial competition, and was used with permission of that office. The jurors and evaluators were all Pace alumni and current criminal defense attorneys, assistant district attorneys, and civil litigators. Each of the top four students won a Kaplan bar review gift card. The top four students, in order of placement, were Scott Trivella, Erin Donovan, Vanessa Neal, and Nisha Desai.
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.
Several interesting criminal procedure decisions were handed down in May by the New York Court of Appeals:
People v. Stone, 2017 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. Bushey, 29 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.
See Rebecca R. Ruiz, Attorney General Orders Tougher Sentences, Rolling Back Obama Policy, New York Times (May 12, 2017).
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.