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Scholarly Articles by Labe M. Richman

Opening Within the Rules 

by Labe M. Richman 

Published in the The New York Law Journal, July 17, 2003 

Jury experts have long held the view that the opening statement has a disproportionately high influence on juror verdict decisions. Psychologists Vinson and Davis noted: 

The analysis of hundreds of post-trial jury interviews and thousands of simulated trials provide consistent findings: The vast majority of jurors arrive at a verdict predisposition during or immediately after opening statements. Further, these initial decisions are remarkably consistent with the final verdicts that jurors render at the conclusion of the trial. 

Vinson and Davis, Jury Persuasion: Psychological Strategies and Trial Techniques, p. 199, Glasser Legal Works (1996). Whether or not the social science research is correct, the opening obviously has a strong effect on which case story the juror’s decide to adopt; and, adoption of the lawyer’s case story means that the jurors will more likely remember and agree with the evidence they hear which supports that story. The opening provides the jurors with the knowledge base necessary to understand the evidence and legal theories underlying the case; and the opening gives the lawyers the opportunity to present facts, issues, and equities that will color the way the jurors view the evidence they will ultimately hear. In short, first impressions count. 

Considering its importance, the practitioner should master the law of opening statements to optimize the impact of his opening while avoiding judicial reprimand during this critical juncture of the trial. Counsel must also be prepared to legally defend the propriety of his opening presentation. 

The right to make an opening “has long been recognized as one of supreme importance.” Devito v. Katsch, 157 A.D.2d at 415 n. 1 (2d Dept. 1990); Huntington v. Conkey, 33 Barb. 218; Kappa Frocks, Inc. v. Alan Fabrics Corp., 263 App. Div. 326 (1st Dept. 1942); People v. Robinson, 202 A.D.2d 225 (1st Dept. 1994). It constitutes a “unique opportunity to advance one’s cause, to communicate the issues to the jury, and to present the facts to be proven.” Devito v. Katsch, 157 A.D.2d at 415 n. 1; Tisdale v. Pres.of D.H. & H.D. Co., 116 N.Y. 416, 419 (1889); Ayrault v. Chamberlain, 33 Barb. 229: Kley v. Healy, 127 N.Y. 555 (1891). An attorney may inform the jury of the “significance of the evidence” as it will be presented; and, a party should be able to anticipate an opponent’s position or evidence. State v. Fleming, 523 S.W.2d 849, 852–53 (Mo. App. 1975); State v. Harris, 731 S.W.2d 846 (Mo. App. 1987) (Since there are few New York cases on the subject of openings, out-of-state cases are used). See United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, J., concurring); Snowhill v. Lieurance, 435 P.2d 624 (Wash. 1967); but see State v. Freeman, supra, 378 S.E.2d at 551; State v. Griffith, supra, 539 P.2d at 608. In New York, both sides have a right to make an opening pursuant to CPLR §4016. 

While counsel should be allowed latitude in making an opening statement, the trial court may use its discretion to reasonably limit the opening’s content. United States v. Rivera, 778 F.2d 591 (10th Cir.) cert. denied, 475 U.S. 1068 (1985); State v. Griffith, 539 P.2d 604 (Idaho, 1975). For example, in United States v. Rivera, the Tenth Circuit allowed the district court to admonish an attorney when, during his opening, he emphasized the defendant?s background, family, and how he had “pulled himself up by the bootstraps,” considerations which the court called “an appeal to sympathy.” United States v. Rivera, supra, 778 F.2d at 593–94. Generally, the scope, length, and timing of an opening is within the control of the trial court. United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982); United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975); United States v. Conti, 361 F.2d 153, 158 (2d Cir. 1966) vacated on other grounds, 390 U.S. 204 (1968). See, United States v. Zelie, 734 F.2d 1447 (11th Cir. 1984). The timing of the opening in a criminal case in New York is governed by CPL § 260.30. 

The opening statement should serve to inform the jury of the issues of the case and to briefly outline the evidence each litigant intends to introduce in support of his allegations or defenses. See, Devito v. Katsch, supra. A defendant has a right to make an opening whether or not he intends to call witnesses and may rely on the facts he expects to be elicited on direct or cross-examination. See,United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982); United States v. Persico, 305 F.2d 534 (2d Cir. 1962). However, importantly, the opening is not simply an occasion to present the facts that will be shown, but is an important opportunity to state the legal claim or defense in basic terms. State v. Freeman, 378 S.E.2d 545, 551 (N.C. App. 1989). See, e.g., State v. Paige, 343 S.E.2d 848, 859 (N.C. 1986); People v. Rogers, 528 N.E.2d 667, 674 (Ill. 1988); see,People v. Rodriguez, 211 A.D.2d 443 (1st Dept. 1995). 

A related issue which often arises is whether, in presenting this basic claim or defense, counsel may discuss the law. One scholar noted that if “defense counsel’s opening is to make any sense at all, the judge must allow him to include some information about the law.” Lubet, Steven; “The Opening Moment”, 43 Def. L.J. 1, 29 (Spring, 1994); but see, United States v. Zelie, 734 F.2d 1447 (11th Cir. 1984). However, courts have been given wide discretion to limit counsel’s explanation of legal concepts as long as the basic legal defense has been communicated to the jury. People v.. Carini, 502 N.E.2d 1206, 1216 (Ill. App. 1986); State v. Mills, 789 P.2d 530, 532 (Idaho App. 1990). In my experience, some judges unnecessarily interrupt openings to preclude any mention of the law when a short accurate synopsis of the legal standard is critical to the jury’s understanding of the lawyer’s opening and the trial itself. 

The most significant rule of opening statements is the prohibition against argument. United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, J., concurring). SeePeople v. Concepcion, 228 A.D.2d 204 (1st Dept. 1996). However, there is no New York case which explains exactly what argument is. Professor Lubet noted: 

The rule against argument is easier to state than to define. Moreover, application of the rule will vary from jurisdiction to jurisdiction and even from courtroom to courtroom. No matter how the rule is articulated, it is almost never hard and fast. Most judges recognize that “argument” is a relative concept and allow lawyers a reasonable amount of latitude. 41 Def. L.J. at 5-7. 

In an attempt to guide us, Lubet explained that lawyers should, in an opening, avoid “interpretation and exhortation” and explaining how evidence should be weighed. Counsel should concentrate on the facts, events that will actually be testified to, and should avoid giving the “rhetorical link” to the significance of the evidence (i.e., “No person could drink that much whiskey without showing it”). However, counsel may structure discussion of the facts so that the conclusions he wishes the juror to reach are inevitable. 

Obviously, counsel’s tone of voice can change the trial court’s interpretation of whether a lawyer is stating a narrative or arguing. Words which are not necessarily argumentative can become that way if they are delivered with a loud voice, sarcasm, rhetorical questions, or sneering. 41 Def. L.J. at 5-7. 

A key test for determining if a comment is not argument is if someone will testify to the fact or conclusion mentioned. For example, courts have disallowed: “All the facts in this case suggest that a mistake was made, that the witnesses were not accurate beyond a reasonable doubt.” People v. Valentin, 211 A.D.2d 509 (1st Dept. 1995)(emphasis added). Certainly, this hyperbolic statement regarding “all” the facts could not be true since there are almost always some facts which indicate that an indicted defendant is guilty. 

A case cited above, People v. Robinson, 202 A.D.2d 225 (1st Dept. 1994), also impacts on the argument issue. There, the First Department reversed a conviction when the court terminated the opening because defense counsel expressed doubt about the memory of the arresting officer. (The Robinson trial court also erroneously shifted the burden of proof when it asked defense counsel during the opening “is that what you are going to prove?”). Similarly, in People v. Rodriguez, 211 A.D.2d 443 (1st Dept. 1995), the First Department also reversed a conviction when the court stopped an opening because defense counsel said that being crouched behind a car makes it hard to identify someone. The Rodriguez Court stated that a trial judge should not unduly restrict counsel from presenting his “view of the case” or “highlighting the weakness of the identification aspect of the People’s case . . . .” 211 A.D.2d at 474. Thus, although counsel cannot make summation-style arguments during the opening, he may explain his basic argument. In other words, instead of arguing, explain what your argument at the end of the case will be. This falls within the litigant’s right, as discussed above, to present his claim or defense in basic terms. 

For example, regarding witness credibility, you may inform the jury that you contend that the plaintiff is lying about the accident; but, when you begin explaining why the jury should reach that conclusion, you probably enter the realm of argument. However, as noted above, in telling the story of the case during your opening, you are free to include those facts, without argument, which support the contention that the plaintiff is lying. This requires restraint — that is, at this stage of the proceedings, let the facts speak for themselves. 

Also, remember Lubet’s primary point: the difference between legally presenting a basic defense or claim and illegally presenting argument is a fine distinction that each judge will interpret differently. Therefore, be prepared with alternative versions of your presentation in case the court precludes your first rendition. 

As a final note on ethical issues, counsel should take care not refer to inadmissible evidence or exaggerate or overstate the evidence. State v. Freeman, 378 S.E.2d 545, 551 (N.C. App. 1989),People v. Darrel Nickelson, ___ A.D.2d ___ (1st Dept. 2002)(Slip Op. 08545).See, People v. Robert Hendricks, A.D.2d (4th Dept. 2002)(Slip Op. 06821). The attorney should also not open on facts he has no intention of proving. See, People v. Torres, 141 A.D.2d 682 (2d Dept. 1988); 28 A.L.R.2d 972; 16 A.L.R. 4th 810; 118 A.L.R. 543; 34 N.Y. Jur.2d, Criminal Law, §2468; 1 CJI NY §3.03, p.84. Reference to witnesses who ultimately do not testify, though disfavored, is often found to be harmless error. People v. Chapparro,___ A.D.2d ___ (1st Dept. 2003)(Slip Op. 12137); People v. Issac Jones, ___ A.D.2d ___, (1st Dept. 2002)(Slip Op. 08801)(one of thirteen victims mentioned in opening did not testify). Inflammatory conclusions, like a prosecutor calling defendant a “parasite,” or irrelevant considerations, such as the fact that “citizens like yourselves” indicted the defendant, are not allowed in an opening. People v. Lippolis, 241 A.D.2d 557 (2d Dept. 1998). Counsel should also not use the opening to disparage opposing counsel nor should she appeal to bias, sympathy, or prejudice. Devito v. Katsch, supra, 157 A.D.2d at 421 n. 7; United States v. Rivera, 778 F.2d 591 (10th Cir.) cert. denied, 475 U.S. 1068 (1985). 

Giving a strong opening while staying within the rules is a challenge that will earn results. 

[This article is published by permission of the New York Law Journal] 

May Jurors Question Witnesses ? 

by Labe M. Richman 

Published in The New York Law Journal, September 25, 2003 

Introduction 

Sometimes jurors have a hard time continuously listening and concentrating on trial testimony. The passive nature of jury service exacerbates this problem primarily because passive listeners are easily distracted by their own thoughts. For this and other reasons, educators always include “learning by doing” activities in every curriculum. These include, for example: class discussion, homework, course workbooks, term papers, labs, etc. People learn best when they are actively involved in the learning process. 

Unfortunately, jurors do not get a workbook to test their memory of the parties, claims and evidence. Moreover, although jurors will eventually enter into a dialogue with each other at the end of the case, such active aids to learning rarely occur in the midst of the trial, when jurors are trying to pay attention and absorb information about the case. 

Juror questioning of witnesses is an active process which would heighten a juror’s focus (and, obviously, the answers to the questions would help the juror alleviate any confusion about the testimony). In this regard, the Courts of Appeal for the First, Third and Sixth Circuits have specifically noted that juror questioning of witnesses increases juror attentiveness. United States v. Collins, 226 F.3d 457, 462 (6th Cir. 2000); United States v. Hernandez, 176 F.3d 719, 725 (3d Cir. 1999); United States v. Sutton, 970 F.2d 1001 (1st Cir. 1992). 

Many lawyers will be surprised to find out that, under certain circumstances, jurors are allowed to pose questions to witnesses. 

Federal Case Law 

Since juror questioning of witnesses is well entrenched in common law and in American jurisprudence, courts have held, with some serious reservations, that it is within a judge’s discretion to allow jurors to put questions to witnesses. United States v. Thompson, 76 F.3d 442, 448 (2d Cir. 1996); United States v. Ajmal, 67 F.3d 12, 14 (2d Cir. 1995); United States v. George, 989 F.2d 1176, 1178–79 (8th Cir. 1993); United States v. Witt, 215 F.2d 580 (2d Cir. 1954) cert. denied, 348 U.S. 887 (1954). Indeed, in spite of the inherent risks of prejudice when jurors question witnesses, federal courts have upheld the practice, noting that the district court is granted with wide latitude to manage trials and improve the truth seeking function of the jury. See, e.g., United States v. Hernandez, 176 F.3d at 724–25. Therefore, juror questioning of witnesses is not per se error and appellate courts must apply harmless error analysis when considering this issue. 

However, the Courts of Appeal are unified in their criticism of juror questioning. When acting as questioners or “inquisitors,” jurors find themselves removed from their role as neutral fact-finders.SeeUnited States v. Ajmal, 67 F.3d at 14. This leads to premature evaluation of the evidence and adoption of a position before consideration of all of the facts, arguments, and law. United States v. Thompson, 76 F.3d at 449. Moreover, the preparation of questions distracts jurors from comprehending ongoing testimony. United States v. Douglas, 81 F.3d 324 (2d Cir. 1996). Juror questioning delays the conclusion of the trial and, further, the lawyers have a hard time objecting to jurors? questions. Since jurors often lack legal education, their questions are likely to be improper and prejudicial; and, when the court declines to ask a question, the juror may falsely feel that her pursuit of the truth has been subverted. Jurors will fallaciously attach more significance to juror questions because of a sense of camaraderie among the jurors. United States v. Collins, 226 F.3d at 461-62. Juror questions can be particularly prejudicial when posed to a defendant witness since premature deliberation and expressed skepticism during the defendant?s testimony will normally be unduly prejudicial. United States v. Ajmal, 67 F.3d at 14. 

On the other side, courts have also recognized advantages. In addition to increasing juror attentiveness, the practice allows jurors to clarify issues, and to communicate to the parties and the court which issues need to be addressed. United States v. Collins, 226 F.3d at 462. Experienced trial attorneys understand these advantages. Although lawyers are responsible for making sure the jurors understand the case, lawyers are unable to enter into a dialogue with jurors to make sure the lawyer is doing his job. This leads, on the one hand, to overly repetitive and unnecessarily detailed testimony aimed at making sure the jury “gets it,” and, on the other hand, it leads to testimony which is not absorbed because it is insufficiently developed and the jury cannot express its lack of comprehension. 

Although reversals on account of juror questioning are rare, many courts have concluded that the risks of undue prejudice outweigh the advantages. Courts consider the procedure fraught with danger. United States v. Cassiere, 4 F.3d 1006, 1017–18 (1st Cir. 1993). United States v. Bush, 47 F.3d 511, 515 (2d Cir. 1995); 970 F.2d at 1005; United States v. Lewin, 900 F.2d 145, 147 (8th Cir. 1990); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir. 1985). The Second Circuit has specifically held that the practice should only be allowed in “extraordinary or compelling circumstances.” United States v. Ajmal, 67 F.3d at 14. Juror questioning of witnesses should be reserved for exceptional situations and should not become routine, even in complex cases. Moreover, courts should not solicit or invite juror questions. United States v. Collins, 226 F.3d at 464; United States v. Douglas, 81 F.3d at 326; United States v. Thompson, 76 F.3d at 449; United States v. Ajmal, 67 F.3d at 15. Such invitation and encouragement by the court will clearly enlarge the number of questions and, thus, enlarge the chance of eliciting questions which cause undue prejudice or constitute juror misconduct, such as: premature deliberation, consideration of matters outside the evidence or speculation. 

Prophylactic measures can ameliorate the harm caused by taking juror questions. These include: (i) making the jurors put their questions in writing; (ii) instructing the jurors not to share their questions with other jurors; (iii) consideration of the propriety of the questions outside the presence of the jurors; (iv) having the court propound the questions; (v) instructing the jurors to disregard questions that are not asked because some questions are technically improper or the witness may be legally incompetent to answer the questions; (vi) instructing the jurors not to attach additional significance to the answers to juror questions; (vii) instructing the jurors only to ask questions when they need clarification on a substantial issue and that these questions should not contain observations or comments about the evidence. United States v. Cassiere, 4 F.3d 1006, 1017–18 (1st Cir. 1993). United States v. Bush, 47 F.3d 511, 515 (2d Cir. 1995); 970 F.2d at 1005; United States v. Lewin, 900 F.2d 145, 147 (8th Cir. 1990); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir. 1985); United States v. Collins, 226 F.3d at 464; United States v. Douglas, 81 F.3d at 326; United States v. Thompson, 76 F.3d at 449; United States v. Ajmal, 67 F.3d at 15; see Hoenig, M., Jury Trial Innovations, N.Y.L.J. p. 6, col 1, n. 4–6 (Nov. 9, 1998). 

In Ajmal, cited above, prophylactic measures, like some of the above, did not ameliorate the harm caused by the numerous questions there, and the Second Circuit still reversed, noting the large number of questions, the deliberative nature of the questions, and the fact that the defendant was questioned [But see United States v. George, 989 F.2d at 1178 (65 written questions allowed)]. Obviously, the above prophylactic measures may avoid error when the questioning is not as pervasive and deliberative and is directed towards clarification rather than advocacy and speculation. United States v. Thompson, 76 F.3d at 450; United States v. Douglas, 81 F.3d at 326.

New York State Law 

Similar to federal law, Appellate Division and Supreme Court decisions have given the court discretion to allow juror questioning of witnesses. People v. Bacic, 202 A.D.2d 234 (1st Dept. 1994); People v. Knapper, 230 App. Div. 487, 492 (1st Dept. 1930); Sitrin Brothers v. Deluxe Van Lines, 35 Misc.2d 1041, 1043 (Oneida, 1962). Also, importantly, the Court of Appeals surprisingly noted, in a case that did not directly involve juror questioning, that one reason the use of a deposition at a criminal trial was disfavored was because the witness could not be questioned by the jurors deciding the case. People v. Carter, 37 N.Y.2d 234, 239 (1975). 

In New York, it is, therefore, not error to allow juror questioning as long as the questions posed by the juror are made in good faith and for the purpose of eliciting facts overlooked by counsel.People v. Knapper, 230 App. Div. at 492. Moreover, it is probably error for the Court to categorically deny the jurors the right to ask questions without exercising the court’ 

s discretion to consider the issue. People v. Riley, 92 A.D.2d 576 (2d Dept. 1983). 

However, the Knapper Court recognized that the practice of juror questioning was ” dangerous to the rights of the litigant.” 230 App. Div. at 492. The Court observed that jurors do not know how to ask proper questions and lawyers cannot object without the risk of offending some jurors. For this reason, juror questioning should be exercised with great care and under strict admonition from the trial judge. 230 App. Div. at 491–92. Courts should also strike questions it deems improper. Bacic, 202 A.D.2d at 235. 

Moreover, courts disapprove of the practice of allowing jurors to spontaneously comment upon and propound questions without the prior approval of the court. People v. Wilds, 141 A.D.2d 395 (1st Dept. 1988). The best practice is for jurors to submit all inquiries in writing to ensure that the inquiry is in the proper form and is not prejudicial. 

Certain questions which contained comments and analysis can also constitute illegal premature jury deliberations. If premature jury deliberation occurs, harmless error analysis is unavailable.People v. Wilds,141 A.D.2d 395; see, People v. Townsend, 67 N.Y.2d 815, 817 (1986). In other words, premature jury deliberation, if objected to, will constitute per se error. This is an important distinction with federal law. (However, as the above discussion of Ajmal shows, whether the question contains premature deliberation is an important factor in determining prejudice under federal law). 

Finally, convictions were not reversed when jurors (left alone with the witness during an in-chambers bench conference) asked a policeman his age, how long he had been on the force, and how old one had to be to become a police officer and the officer answered. Although these questions were entirely improper, they were not harmful and were not examples of premature deliberations. People v. Adams, 159 A.D.2d 709 (2d Dept. 1990). 

Conclusion 

Unfortunately, common sense dictates that whether or not jurors are allowed to ask witnesses questions, they still prematurely take sides and, during the trial, continually evaluate the evidence in light of their predispositions and first impressions. Considering the problems with ferreting out juror bias during voir dire, juror questions may be an important avenue for determining whether jurors are really neutral and keeping an open mind. In spite of this point, courts will continue to restrict the practice because letting the jurors communicate on the record during the trial will probably lead to more valid claims for reversal. 

As far as keeping jurors attentive, lawyers can optimize juror comprehension by making their cases more visual, more organized, and, thus, more interesting and digestible, so as to captivate the jurors’ minds and avoid the need for their troublesome questions. 

[Published by permission of The New York Law Journal] 

Published in the New York Law Journal on February 18, 2004 

Film Festival on Sentencing 

Federal law has always required appellate judges to defer to the decisions of district judges and juries because they are so much closer to the parties and witnesses and can view the proceedings firsthand — rather than relying on the cold record, as appeals courts do. At the request of Attorney General Ashcroft, Congress has departed from that legal tradition, and now, as a result of the Feeney Amendment, appellate courts review any district court departure from the U.S. Sentencing Guidelines without any deference to the judgment of that court. This legislation prompted Brooklyn U.S. District Judge Jack Weinstein to videotape all sentencing hearings so that appellate courts could see the defendant as he does at the time he imposes sentence. 

Although Judge Weinstein has authored hundreds of scholarly articles and several books and encyclopedias, this is his first directorial effort and he should be commended for his foray into this new genre. Judge Weinstein rightly emphasizes the power of visuals in communicating ideas, especially emotional ones. 

It appears that Judge Weinstein’s point goes beyond the power of visual communication. His order for the videotaping of sentencing hearings highlights an important fact — that those that call for mandatory minimum sentencing have never met the defendants and their families personally. Those that have know that judges need some discretion at sentencing to be able to balance the numerous relevant factors: punishment, deterrence, victim’s rights, levels of defendant culpability, nature of the crime, and characteristics of the defendant and his family. The camp advocating discretion includes most federal judges, like retired U.S. District Judge John Martin, a former prosecutor never described as soft on crime, who retired recently, in part because of the unfair inflexibility of the Sentencing Guidelines and the Feeney Amendment. 

In a gross example of sentencing unfairness, the Sentencing Guidelines would require that a judge impose 80 years for selling crack when other like defendants who sold powder cocaine would get eight years. Since Congress does not have to meet the defendant or the defendant’s family when developing sentencing policy, it does not feel compelled to require proof that such draconian sentences actually deter crime, or help in the drug war. By not having to look a human being in the eye, Congress can pass expensive, politically expedient legislation that ruins the lives of defendants and innocent family members and does not forward the national crime agenda in any proven way. 

Moreover, this detached policy perspective suffers from a terrible mis-perception — that criminal cases can be dealt with en masse without fine-tuning for the individual crime, defendant and victim. As noted above, this involves a nuanced balancing of many factors. The district court’s personal exposure to all the facts gives it a special expertise in sentencing which should be respected by the public and its Congress which have no such exposure. 

However, the Congress and the Justice Department has asserted that our judges, nominated by the President, and confirmed by Congress, are not worthy of our trust. The district judges I practice before are plenty tough on criminals and I am at a loss to figure out from where the Attorney General’s and the public’s mistrust derives. Maybe Judge Weinstein should point the camera at himself and his colleagues to make this point. A strong dose of cinema verité might counteract the surreal depiction of supposed liberal judges on television shows like Law and Order

I hope something like a Judge Weinstein Film Festival can visually and viscerally communicate the ideas that will positively influence the course of a rational and scientific sentencing policy in this country. 

Labe Richman 

____________________________________________________________________________________

This article will be published in the New York Law Journal on June 15, 2006. 

CAN A DEPORTED DEFENDANT CHALLENGE HIS CONVICTION FROM OUTSIDE THE UNITED STATES? 

By Labe M. Richman 

As a result of extensive plea bargaining, there were over 168,000 convictions last year in New York City alone, a mind-boggling number. Of course, the millions of convictions attained in New York over the past decades have led to numerous deportations. Obviously, once deported, many of these individuals are motivated to investigate the propriety of their conviction in an effort to re-enter the United States. It is the purpose of this article to examine whether an individual may challenge the legality of his conviction after being expelled from the country. Despite the practical difficulties of litigating from outside the jurisdiction, there is no absolute bar to the filing of a constitutional challenge by appeal or by way of Criminal Procedure Law § 440.10. 

Most criminal appeals lawyers assume the opposite. This is because there are numerous summary Appellate Division decisions where appeals were dismissed because the defendant-appellant was deported. [SeePeople v. Wright, 274 A.D.2d 599 (2nd Dept. 2000); People v. Shaw, 237 A.D.2d 995 (4th Dept. 1997); People v. Malbranche, 268 A.D.2d 488 (2nd Dept. 2000); People v. Forde, 182 A.D.2d 830 (2nd Dept. 1992); People v. Hernandez, 157 A.D.2d 854 (2nd Dept. 1990); People v. Ragsdale, 144 A.D.2d 708 (2nd Dept. 1988); People v. Adamson, 122 A.D.2d 147 (2nd Dept. 1986); People v. Jiminez, 97 A.D.2d 799 (2d Dept. 1983)]. In some cases, CPL § 440.10 challenges were also summarily dismissed for the same reason. [People v. Byfield, 7 Misc.3d 126(A)(N.Y. Sup., App. Term 2005). The briefs on appeal reflect that the defense did not contest the mootness of the appeal. Therefore, in Byfield, the issue raised in this article was not addressed in an adversarial process and the decision contains no facts or analysis]. However, none of these decisions contain a discussion of the legal rationale for the dismissal nor do they contain a description of the facts surrounding the deportations or the convictions. Therefore, the opinions are of little precedential value. 

Furthermore, and probably more important, all of the above summary decisions cite People v. Del Rio, [People v. Molina Del Rio, 14 N.Y.2d 165 (1964)], to support the dismissal of the appeal of a defendant who has been deported. Del Rio is a very interesting case that deserves extended discussion. Not only does it not bar a challenge by a deported individual, it actually contains language that supports a defendant’s right to challenge a conviction when he has been involuntarily removed from the jurisdiction, as in a deportation. 

In 1961, Del Rio, a Cuban national, was convicted of murder after trial and sentenced to 20 years to life. As part of a prisoner exchange with the Cuban government, the governor commuted Del Rio’s sentence and allowed him to be paroled, provided that he agreed to never return to the United States. After Del Rio accepted this commutation and left the United States, the prosecution sought to dismiss his appeal. The Court granted the motion, but, in reaching that decision, it spent the better part of the opinion determining whether Del Rio’s departure from the United States was voluntary. Indeed, it noted the compelling fact that when the assistant attorney general presented the governor¿s agreement for commutation of his sentence, Del Rio immediately signed it without waiting for the guard to remove his handcuffs. The legal importance of the voluntariness of Del Rio’s removal from the United States was made even more clear when the Court noted in the procedural history of the case that it had dismissed the appeal on an earlier occasion and had vacated that order when it was alleged that his removal was not voluntary. This implies that an involuntary removal from New York, such as during a deportation, could not strip jurisdiction from the Court. 

In reaching its decision, the Del Rio court relied on the fugitive disentitlement doctrine which holds that a convict who has escaped or absconded cannot avail himself of the court¿s jurisdiction. [The Del Rio Court relied on People v. Genet, 59 N.Y. 80 (1874); For a discussion of the fugitive dis-entitlement doctrine, see Ortega-Rodriguez v. United States, 507 U.S. 234 (1993); Peppin v. Lewis, 194 Misc.2d 151 (Family Court, Albany 2002)]. Such a rule is good public policy because it discourages flight while an appeal is pending. It would be a dishonor to the Court to allow a defendant to flee and still appeal his sentence and conviction when he would not have to fulfill his sentence or be retried once the appeal was decided. Such action, of course, flouts the authority of the court. However, it is indisputable that the application of this doctrine also requires a voluntary absence by the defendant. As the Eleventh Circuit stated in United States v. Ortega-Rodriguez, 13 F.3d 1474, 1476 (11th Cir. 1994), a fugitive defendant forfeits his right to contest the conviction on appeal unless his absence from the jurisdiction “was due to matters beyond his control.” Id. at 1476. This exception to the doctrine applies to deportees because they are normally expelled from the country against their will which is, by definition, beyond their control. See People v. Clancy, 39 A.D.2d 538 (1st Dept. 1972). 

Even though the fugitive disentitlement doctrine and Del Rio are clearly distinguishable from involuntary deportations, as noted above, there are still numerous summary appellate division opinions which dismissed appeals because the defendant was deported. These decisions must be addressed and, in reality, they can be reconciled with the above analysis. First, it may be that the substance of these appeals were meritless, that counsel lost touch with the defendant after his deportation, [SeePeople v. Shaw, 237 A.D.2d 995 (4th Dept. 1997)(defendant deported and whereabouts unknown)], and that the motion to dismiss the appeal was, thus, unopposed by defense counsel. This explains the summary nature of the order. Second, it may also be that the deportations occurred for immigration violations unrelated to the convictions on appeal. Therefore, in that situation, even if the challenged conviction was reversed on appeal, the defendant might never be able to return for trial because he is inadmissible to the United States for other reasons. This circumstance would bring the case within the ambit of Del Rio, where the defendant agreed to never return to the United States. It would not make sense to review a conviction when the defendant is forever banned from the United States for entirely independent reasons. In such a situation, the Court would have to expend great effort to decide the case, and then if the conviction was vacated, it would never be able to try the defendant on the indictment. This would be another reason that a defendant might not oppose a motion to dismiss an appeal — that is, reversal would have no effect on his right to re-enter the United States, and the conviction might not affect his life in his home country. 

However, the situation is much different when the conviction which the defendant seeks to challenge actually caused his deportation and keeps him from re-entering the United States. This was exactly the reasoning of the Washington State Supreme Court when it ruled that a defendant may challenge his conviction on appeal when he is outside the United States. [State v. Ortiz, 774 P.2d 1229 (Wash. 1989)(en banc); SeeUnited States v. Campos-Serrano, 404 U.S. 293, 294 n. 2 (1971); United States v. Marsh, 747 F.2d 7, 9, n. 2 (1st Cir. 1984); Cuellar v. State, 13 S.W.2d 449, 451 (Tex. App. Corpus Christi, 2000)]. In such cases, the appeal (and for that matter a collateral challenge), would not be moot at all but would impact on the defendant’s right to re-enter the United States, a critical issue for any prior resident. 

To guarantee fairness, New York law should be interpreted similarly. A defendant whose rights are violated and is then deported against his will should not be denied redress in our courts simply because he is not situated in the country. New York State should not be able to win post-conviction litigation simply because the federal government expelled the defendant against his will before he could vindicate his constitutional and statutory rights. [It should be noted, however, that DHS cannot deport individuals on convictions which are still on appeal. Matter of Thomas, 21 I&N Dec. 20 (BIA 1995) citing Pino v. Landon, 349 U.S. 901 (1955); Matter of Ozkok, 19 I&N 546, 552 n. 7 (BIA 1988); 8 U.S.C. §§ 1101 (f)(3), (7) & (8). The situation discussed in this article will arise more often for defendants who failed to appeal in the first instance but whose rights were otherwise violated, see, People v. Corso, 40 N.Y.2d 578 (1976), or for defendants who fail to tell DHS that their convictions are still on appeal]. 

Labe M. Richman 

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The following article was published in the New York Law Journal on January 19, 2007. 

Are Full Waivers of FRE Rule 410 Legal? 

Pursuant to Rule 410 of the Federal Rules of Evidence, the government, at trial, may not use statements made by a defendant to an attorney for the government during plea discussions. Also see, Rule 11(e)(6), Fed Rule Crim Procedure. Congress passed this rule because it believed that candid and free discussions between the government and criminal defendants would lead to more dispositions and less cluttered court trial calendars. Despite the value inherent in such a law, the U.S. Attorney¿s Office in the Southern District of New York requires full waivers of Rule 410 during non-cooperation proffer sessions. This article addresses the legality of such a policy. 

As a result of the harsh mandatory minimum sentences being meted out in our nation’s federal courts, defense attorneys often bring their clients to speak with prosecutors to convince the government that the minimums should not apply: (i) because the client has valuable information with which to cooperate; (ii) the criminal conduct is not as heinous as the government initially believed [see, e.g. 18 U.S.C. § 924(c)(1)(A)-(C); 21 U.S.C. §§ 841(b)(1)(A)-(B)](which often involves a client convincing the government that his drug offense involved lesser weights than charged in the indictment, see, Drug Quantity Table, U.S.S.G. § 2D1.1) ; or (iii) the defendant qualifies for relief from these minimums under the so called “safety-valve” provision. [18 U.S.C. § 3553(f). To obtain relief from mandatory minimum sentences under the so-called “safety-valve” provision, the defendant must meet with the government and truthfully proffer all facts and evidence surrounding his involvement in the offense. 18 U.S.C. § 3553(f)(5)]. Attorneys have become accustomed to the fact that during such proffer sessions U.S. Attorneys Offices require that their clients sign limited waivers of Rule 410 rights ¿ that if they raise defenses at trial which conflict factually with statements made during these plea discussions, the government may offer the statements to impeach or rebut such defenses. [See, United States v. Velez, 354 F. 3d 190 (2d Cir. 2004); Zabel and Benjamin, Are “Queens for a Day” Pacts Courtesans, N.Y.L.J., June 13, 2001, p. 3. It should be noted that the Supreme Court has never directly approved any waiver of Rule 410 beyond a waiver that the proffer session statements may be used to impeach the defendant should he testify]. 

However, in recent years, when proffer sessions do not involve the prospect of cooperation, Southern District prosecutors have required defendants to go further and allow the use of plea-discussion statements during the government’s case-in-chief. [Southern District cooperation proffer agreements still contain the more limited waiver provisions because prosecutors have a greater incentive to offer some immunity to defendants who are attempting to cooperate with law enforcement]. The legality of requiring such a full waiver of Rule 410 at a proffer session has never been directly addressed by the federal courts. 

A limited waiver of Rule 410 was upheld by the U.S. Supreme Court in United States v. Mezzanato, 513 U.S. at 196 (1995), where the Supreme Court reviewed the legality of a defendant’s proffer agreement that any statements he made could be used to impeach him if he testified at trial. However, in a very short concurrence, Justice Ginsberg, joined by Justices O’Connor and Breyer, indicated that a waiver to use the statements on the case-in-chief might violate Congress¿ intent to encourage plea bargaining because it would inhibit a “defendant’s incentive to negotiate.” 513 U.S. at 211. Justice Souter wrote a dissent, joined by Justice Stevens, which argued that Rule 410 could never be waived without undermining Congress’s intent. In contrast, Justice Thomas¿s majority opinion which was joined by Justices Rehnquist, Scalia, Kennedy, and the three concurring justices used language which implied that the government could obtain a 410 waiver to use statements at any time. 

Since three Justices added a concurrence which stated that a defendant might not be able to waive the use of plea discussions on the government¿s case-in-chief, and two justices believed Rule 410 could never be waived, a majority of the Supreme Court did not expressly approve of the full waiver contained in the Southern District non-cooperation-proffer-session agreements. 

The closest case on the issue is United States v. Burch, 156 F.3d 1315 (D.C. Cir. 1998), where the D.C. Circuit authorized a full 410 waiver in a non-proffer-session context. [The agreement also allowed the use of statements made by the cooperator in meetings held after the plea. It does not appear that these were statements made to government attorneys during plea bargaining under Rule 410]. In Burch, the court approved a cooperation plea agreement which called for a full waiver of Rule 410 if the defendant withdrew his plea. [Not only does Rule 410 forbid the use of plea discussions but it precludes the use of guilty pleas which are eventually withdrawn]. Before the D.C. Circuit truly delved into the issue raised by the concurrence in Mezzanato, it noted that the concern that use of 410 statements on the case-in-chief would undermine plea bargaining was not significant in the context presented in Burch, where the waiver was the result of plea discussions, not a pre-condition to such discussions. Id. at 1321-22. 

In contrast, the acceptance of the proffer agreement is a pre-condition to plea discussions. Without a full 410 waiver, the defendant will not obtain a face-to-face meeting with Southern District prosecutors where he can explain the facts which might mitigate his sentence. However, with such a full waiver, the defendant would essentially be pleading guilty to any conduct admitted during the meeting. For example, if a defendant came to a proffer session and said that his drug amount for sentencing purposes in a cocaine distribution conspiracy was four kilos, and not forty kilos as charged, he would be offering an admissible confession to a twenty-year crime — conspiracy to distribute cocaine. 21 U.S.C. § 841(b)(1)(C). The only issue left for trial would be whether the drug weight of the conspiracy satisfied the mandatory minimum provisions of the Controlled Substances Act. 21 U.S.C. §§ 841(b)(1)(A)-(B). It is hard to argue that such a significant result of the proffer session would not discourage defendants from participating in such discussions. 

In short, under these facts, a defendant would have to essentially plead guilty to a twenty-year crime just to have the prosecution listen to him. This may offend members of the federal judiciary. On this point, Judge Denise Cote and members of the Second Circuit have said in regard to limited waivers of Rule 410: 

While courts must consider general fairness principles in interpreting and enforcing agreements between defendants and the government, “with respect to federal prosecutions, the courts’ concerns run even wider than protection of the defendant’s individual constitutional rights to concerns for the honor of the government, and public confidence in the fair administration of justice in a federal scheme of government.” 

United States v. Chapparro, 181 F.Supp.2d 323, 335 (S.D.N.Y. 2002) quoting United States v. Ready, 82 F.2d 551, 558 (2d Cir. 1996). It may not be honorable for the government to require such full waivers “just to listen,” because they should be interested in hearing mitigating information when offered by a defendant simply to do justice. Moreover, such a full waiver, beyond the limited one upheld in Mezzanato, might not marginally support any significant jurisprudential function. In Mezzanato and Velez, the government argued that the limited waivers were required to ensure that defendants were telling the truth in their proffer sessions. To ensure this end, the defendant needed to know that he would be impeached with his proffer statements if he deviated from them on the stand. The waiver which allows use of the statements on the government’s case-in- chief does not marginally support this value but it inhibits free discussion in a much more significant way. 

Of course, the government will argue that, because of the insurmountable cases they develop, defendants will have plenty of incentive to “essentially plead guilty” so that the government will listen to their mitigating evidence. However, in cases where the government¿s case is not so overwhelming, a defendant will be put in a significant quandary if he wants to present evidence to the government in search of a better disposition. Unless the Southern District prosecutors change their policies, federal courts will soon be grappling with whether this quandary should exist. These cases will have to answer the query posed by the concurrence in Mezzanato — whether requiring full waivers of Rule 410 in proffer agreements violates Congressional intent. 

Labe M. Richman 

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Labe Richman also co-authored “Interrogation and Confessions,” Chapter 3, Criminal Defense Techniques, (Matthew Bender).