A Lot Of New Stuff To Cover

If you read our sister Blog That Lawyer Dude you will know that I spent all of yesterday in bed reading e-mail and surfing the net. Well it was time well spent for readers of The Long Island (Criminal) Trial Law blog.

First there is Holmes v. South Carolina 547 US____(2006) Justice Alito's first written opinion. It is on a Criminal law case and the ex prosecutor found for the defendant!
Money quote: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’

Mark Mahoney past president of the NYS Association of Criminal Defense Lawyers has written extensively on this. I think the decision is very important in that it is a restatement by a unanimous SCOTUS that the defense has a Constitutional guarantee to present a defense. The use of this confrontation clause issue especially when looked at through the recent SCOTUS decision in Crawford v. Washington 541 U.S. 36 (2004), is a real hook for defense attorneys to get in the kind of evidence that can raise a reasonable doubt. Practioners would be wise to carry both decisions in their trial notebooks and to look for state cases that hold similarly. Argue them to your benefit.

Another big win for Long Island and New York defense attorney's is People v. Burton. There are a strain of judges that just didn't get it when it came to granting hearings. They were over requiring pleadings by defendants to get a hearing on a search. They were requiring the defendant to admit to possessing contraband in order to get a hearing on a search. Their theory was, if you didn't possess it then you had no right to challenge the search for it because your defense is not that the search was bad but that you didn't possess it. The problem with that tautological philosophy was that the defendant had to admit to the possession to knock down the bad search and if he failed to suppress he now could not deny possession. It was a win/win for the prosecution unless the police completely blew their hearing testimony.

Noting that allegations of facts may be provided by the accused or others under the statute (CPL 170.60)Burton holds that "the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were
sufficient to satisfy the factual allegation requirement of CPL 710.60 (1) and thereby establish standing to seek suppression."

Pleading note: it is not enough to just plead that the defendant was standing and that he was searched and the police found drugs on him. "A defendant must
additionally assert that the search was not legally justified and
there must be sufficient factual allegations to support that
contention (see CPL 710.60 [1]). (i.e. that he was not committing any violation of the law.) This simpler pleading scenario does not resurrect the "automatic standing doctrine." rejected in the Ponder decision 54 NY2d 160 (1981). It certainly however makes pleading an illegal search under state law far easier.

I am going to cut this post off here because I want to discuss two new cases dealing with polygraph evidence in a separate post. However I want to tell you that beginning next week I will be starting a podcast to supplement my posts here and on That Lawyer Dude. I will post a link to the podcast a couple of days before we go fully on line. The Podcast will look at legal issues such as those discussed above as well as feature guests talking about these cases.