Most federal cases end in a guilty plea (about 97%) and most of those involve plea agreements – a reflection of what has been described as the prosecutor’s “awesome” bargaining power. In fact, as the Supreme Court acknowledged in Frye v. Lafler, “longer sentences exist on the books largely for bargaining purposes.” How stringently […]
Among the many proposals currently being advanced to reduce our shameful mass incarceration is the expansion or duplication of the “safety valve” under 18 U.S.C. § 3553(f). This provision grants first-time, low-level, non-violent drug offenders a path to avoid heavy mandatory minimum penalties. They must meet certain criteria: only one criminal history point, no […]
Criminal defense lawyers are forced to rely as much on instinct as information. Clients may genuinely not know the facts or refuse to share them. Criminal discovery, despite the stakes in criminal cases, is a shadow of its civil counterpart. Prosecutors, more often than not, “play things close to the vest,” to quote a […]
It is one of the great ironies of the law that in criminal cases, where the stakes are the highest, defendants have less discovery rights than in civil cases, and far less than those prosecuting them. One discovery mechanism available to a defendant is Fed.R.Crim.P. 17(c)(1), which allows the criminal defendant, with the permission […]
The highly technical SORNA statute – a dubious component in efforts to prevent sexual violence – continues to accrue appellate drubbings. In United States v. Lunsford, issued on August 5, 2013, the Eighth Circuit held that an individual subject to sex offender registration is not required under SORNA to notify the registry of a […]
A downward variance to probation from a guideline range of 135 to 168 months in a $33M fraud case has precipitated a remand for a fuller explanation in United States v. Cole, issued on August 6, 2013. The government had appealed the sentence as substantively unreasonable, but the Eighth Circuit did not reach that […]
What standard should govern the analysis in a habeas proceeding of the government’s knowing or reckless presentation of perjured testimony at a trial? Is it, as the Ninth Circuit has held, simply a materiality determination (using the lower materiality standard for perjury) or is it a two-step process requiring both a materiality determination, followed […]
Defense counsel’s failure to move for judgment of acquittal at the close of the government’s case, at the close of all evidence, or after the jury’s verdict, despite “razor-thin” evidence of guilt, resulted in a defendant forfeiting that argument, and resorting to the steep standard of “plain error” review on appeal, in United States […]
Some of the most complex and problematic issues in federal sentencing involve the interaction between simultaneous state and federal sentences. These include whether such sentences run concurrently or consecutively to each other, where is the optimal place to serve time for prison credit purposes, when concurrent sentencing is mandatory or simply discretionary, and when […]
The relentless efficiency of our criminal justice system depends on frequent and candid plea discussions. That’s why Congress adopted Rule 410 of the Federal Rules of Evidence, which provides that statements made during plea discussions are inadmissible at trial – a rule that courts, applying legislative intent, have extended to the impeachment context. But […]