Two Important Techniques For a Defense Opening in a Criminal Trial

By J. John Sebastian There are two important steps to delivering a powerful opening statement as defense counsel in a criminal jury trial. The first is to declare your client's innocence. The second is to show the jury the prosecutor is NOT a witness and is simply telling a story.

I. Declaring your client's Innocence
It seems like it would be common sense for an attorney to tell the jury, somewhere in the opening statement, that his or her client is "not guilty" of the charges. However, this step is often overlooked, even by experienced advocates.

Many attorneys will dance around this issue and never come right out and tell the jury "my client is NOT GUILTY!" Instead they will talk about reasonable doubt and all of the weaknesses in the State's case, but never tell the jury what the defense's position is in the case.
Instead consider this approach:

"Ladies and gentlemen of the jury, it is very important that you understand what our position is in this case. It is very important that you understand our position right from the very beginning of this trial... and our position in this case is that Bobby is NOT GUILTY... he is innocent, he did not do what the State is accusing him of!!"

The jury needs to know, right from the outset, that your client's position in the case is that he is not guilty and has requested a jury trial because of that.

II. The Prosecutor is "not a witness... "
Certainly, the prosecution will lay out its version of the evidence in the opening. Of course if the jury were to accept that version of the facts without further inquiry the verdict would overwhelmingly be guilty. However, there is a technique you can use here to attack the prosecutors opening and neutralize its effect on the jury.

Consider saying something like this:

"I would like to complement the prosecutor on a very well organized opening statement.
And as I was listening to the prosecutor, I said to myself... 'well If the case is really that straight forward and the prosecutor says Bobby is guilty and he has all the evidence, why don't we just end it here and vote a verdict right now?'

But, then I remembered one very important FACT:... The prosecutor, in THIS CASE IS NOT A WITNESS!!... he wasn't on Main and State on the date they allege the incident took place...

"He only has a story that he has been TOLD!!!... And how many times ladies and gentlemen have you been told a story that turns out to be untrue?

How many times have you opened a newspaper or read a story online, and found out later the story was FALSE?"

I submit to you it is a daily occurrence!!!"

"That's right members of the jury the prosecutor is not a witness in this case!!!"

These two techniques will neutralize a prosecutor's powerful opening, catch the jury's collective attention, and pave the way for you to lay out the defense version of the case in the balance of your opening statement.

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45 day motion deadline

Ordinarily, a defendant has 45 days from arraignment to file his omnibus motion.  In People v. Bellissimo (2d App. Term. 12/3/2009), Justice Court ruled the defendant's untimely because it was not filed within this time frame.  Appellate Term nevertheless reversed the conviction.  Why?  Because Justice Court had set a briefing schedule outside the 45 day window.  As the People conceded, the defendant's motion was filed in compliance with this schedule and was therefore "within such additional time as the court may fix upon application of the defendant made prior to entry of judgment."  CPL § 255.20(1).  (LC)

Police afforded more discretion to use canine drug sniffs during automobile stops

The New York Court of Appeals, in two cases involving the use of drug sniffing dogs during automobile stops, held that a “founded suspicion,” instead of the higher, more demanding "reasonable suspicion" standard, justifies an exterior canine sniff search of an automobile. Additionally, a canine sniff search of the exterior of an automobile does constitute a "search."
In People v. Devone (Ct. App. 6/08/2010) (Pigott, J.) (4-3), the police stopped a vehicle for cell phone use. The officers discovered that a male driver was operating a car registered to a female. After being ordered to exit the vehicle, police officers conducted a canine sniff search due to the “suspicious inconsistencies” in the driver's answers to various questions. After being signaled by the dog of the possibility of drugs, the officer found a quantity of crack cocaine in the seating console. The Appellate Division reversed the trial court's order suppressing the evidence and held that the police needed only a "founded suspicion" as opposed to a reasonable suspicion to conduct the canine sniff on the exterior of the vehicle.
In People v. Abdur-Rashid, a companion case, an individual was pulled over twice in one day for driving without a front license plate and having an expired inspection sticker. The second officer observed the defendant become anxious and ask to be let go since he was already stopped that day. When the officer questioned the passenger in the car, who claimed that he was only there trying to keep the driver awake and alert during their trip, the officer became suspicious and retrieved his drug sniffing dog. After being “alerted” by the dog, the officer found a black duffel bag in the trunk filled with two freezer bags of cocaine.
The Court of Appeals held that “founded suspicion" was present in both of these cases. The majority justified this lower standard, maintaining that an individual has a lower expectation of privacy in an automobile than in his or her home. Given this lowered expectation combined with the fact that the canine sniff is less intrusive, the founded suspicion standard was appropriate.
Judge Ciparick dissented, arguing that a reasonable suspicion standard should be met before a canine sniff is conducted. There is an expectation of privacy in portions of a vehicle not visible with the naked eye.  Thus, probable cause is generally required for those areas.  Thus, the dissent argued there should not be a difference between a dog sniff outside of a home (which is not allowed under People v. Dunn) and a sniff outside of a car.  The dissent added that because drug sniffing dogs are trained for just that—drug sniffing—that those dogs would not have helped the officers ascertain whether the vehicle was stolen. Thus, the drug sniffing dogs served no purpose related to the stop itself; rather, the canines were used to engage in a fishing expedition for unrelated evidence.
Additionally, the dissent emphasized that the policy justification behind distinguishing between vehicular and residential privacy—practical concerns surrounding expediency—were not present here. Finally, the dissent pointed to New York's strong tradition of protecting its citizens from unreasonable searches as a justification for a higher standard.

 http://www.nycrimblog.com/nycrim/suppression/

-ACOD in Criminal Court

-ACOD in Criminal Court

In NY criminal law (wikipedia.org), adjournment in contemplation of dismissal (ACD or ACOD) may be offered to a defendant (wikipedia.org) in the interest of justice with a view toward ultimate dismissal of the charge (wikipedia.org)[1] (wikipedia.org) The judge (wikipedia.org) usually adjourns (wikipedia.org) the case for a period of six months (sometimes a year) after which time  the case will be dismissed as long as the defendant has stayed out of  trouble (i.e., has not gotten arrested (wikipedia.org) again). It is neither a form of probation (wikipedia.org), nor a conviction (wikipedia.org).

 See e.g. New York Criminal Procedure Law, Section 170.55

For  many clients facing a criminal charge in the NYC Criminal Courts, the  best option is the Adjournment in contemplation of Dismissal under  170.55.  ("ACD"). The Statute is set forth below in its entirety:    Clients are always interested in understanding this option and for sake  of clarity, I have reproduced the entire statute below:
  "§  170.55 Adjournment in contemplation of dismissal. 1. Upon or after  arraignment in a local criminal court upon an information, a simplified  information, a prosecutor's information or a misdemeanor complaint, and  before entry of a plea of guilty thereto or commencement of a trial  thereof, the court may, upon motion of the people or the defendant and  with the consent of the other party, or upon the court's own motion with  the consent of both the people and the defendant, order that the action  be "adjourned in contemplation of dismissal," as prescribed in  subdivision two. 2. An adjournment in contemplation of dismissal is an  adjournment of the action without date ordered with a view to ultimate  dismissal of the accusatory instrument in furtherance of justice. Upon  issuing such an order, the court must release the defendant on his own  recognizance. Upon application of the people, made at any time  not more than six months, or in the case of a family offense as defined  in subdivision one of section 530.11 of this chapter, one year, after  the issuance of such order, the court may restore the case to the  calendar upon a determination that dismissal of the accusatory  instrument would not be in furtherance of justice, and the action must  thereupon proceed. If the case is not so restored  within such six months or one year period, the accusatory instrument is,  at the expiration of such period, deemed to have been dismissed by the  court in furtherance of justice. 3. In conjunction with an  adjournment in contemplation of dismissal the court may issue a  temporary order of protection pursuant to section 530.12 or 530.13 of  this chapter, requiring the defendant to observe certain specified  conditions of conduct. 4. Where the local criminal court information,  simplified information, prosecutor's information, or misdemeanor  complaint charges a crime or violation between spouses or between parent  and child, or between members of the same family or household, as the  term "members of the same family or household" is defined in subdivision  one of section 530.11 of this chapter, the court may as a condition of  an adjournment in contemplation of dismissal order, require that the  defendant participate in an educational program addressing the issues of  spousal abuse and family violence. 5. The court may grant an  adjournment in contemplation of dismissal on condition that the  defendant participate in dispute resolution and comply with any award or  settlement resulting therefrom. 6. The court may as a condition of an  adjournment in contemplation of dismissal order, require the defendant  to perform services for a public or not-for-profit corporation,  association, institution or agency. Such condition may only be imposed  where the defendant has consented to the amount and conditions of such  service. The court may not impose such conditions in excess of the  length of the adjournment. 7. The court may, as a condition of an  adjournment in contemplation of dismissal order, where a defendant is  under twenty-one years of age and is charged with (a) a misdemeanor or  misdemeanors other than section eleven hundred ninety-two of the vehicle  and traffic law, in which the record indicates the consumption of  alcohol by the defendant may have been a contributing factor, or (b) a  violation of paragraph (a) of subdivision one of section sixty-five-b of  the alcoholic beverage control law, require the defendant to attend an  alcohol awareness program established pursuant to subdivision (a) of  section 19.07 of the mental hygiene law. 8. The granting of an  adjournment in contemplation of dismissal shall not be deemed to be a  conviction or an admission of guilt. No person shall suffer any  disability or forfeiture as a result of such an order. Upon the  dismissal of the accusatory instrument pursuant to this section, the  arrest and prosecution shall be deemed a nullity and the defendant shall  be restored, in contemplation of law, to the status he occupied before  his arrest and prosecution. "

Agency Defense -Narcotics

Agency Defense -Narcotics

Agency Defense & Motive
I highly recommend an article (ssrn.com) by one of my colleagues, Professor Elaine Chiu (stjohns.edu),  about the role of motive in criminal law.  Prof. Chiu uses New York's  agency defense -- which holds that a steerer who acts as an agent of the  buyer, not the seller, in a drug sale is guilty as an accomplice to  possession, not sale -- to argue for greater consideration of motive in  deciding guilt and punishment.
Here is the abstract:

This  article builds on recent discussions amongst criminal law scholars on  the role that motive should play in the criminal law. It advocates for  greater consideration of a defendant's motive in all critical decisions  of the criminal justice process and offers concrete guidelines. Unlike  many other articles that focus on euthanasia or hate crime, this one  takes on the simple street sale of drugs and an unusual defense known as  the agency defense to demonstrate how the criminal law can better  accommodate motive. Created to avoid the harsh jail terms imposed on  convicted drug dealers, the agency defense pretends that steerers who  steer customers to drug dealers are the purchasing agents of the  customers. As agents, they avoid criminal liability for the sale of  drugs. Steerers, though, are not agents; instead, they are commonly drug  addicts themselves who support their addictions by working as steerers.  Instead of using a legal fiction like agency, this article proposes  that the criminal law honestly and directly accommodate the true motive  of steerers to satisfy their drug addictions. Addiction is admittedly  problematic as a motive because of its low provability and low moral  potency. One acceptable accommodation may be to mandate that judges  simply consider whether drug offenders suffer from addictions in  determining the appropriate sentence. Aside from this consideration, not  every defendant will warrant an actual reduction in sentence. That  would be up to the discretion of the judge.

The article (ssrn.com) is available for free download from the Social Science Research  Network.  It was originally published in the Buffalo Criminal Law  Review.  While you're at SSRN, check out Prof. Chiu's other papers (ssrn.com) as well as articles that I have authored (ssrn.com).  SSRN is an effective tool for conducting research in modern legal scholarship.


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