trialdex ™ litigation tools

 

from the trialdex library

360 Federal Crimes (2020) is a 550 page field guide to the most commonly charged federal crimes.
A Detective's Guide to Interrogation Law (2020) covers–in plain language, and with illustrative case examples–every important interrogation law principle.

recent blog posts

June 2021
Colorado Reporter's Online Update
Greer and plain error
Progress report on the Federal Crimes Statute Tracker
Civil jury instruction news from Arizona
California has posted a supplement to its Civil Jury Instructions (CACI)
May 2021
The Vermont civil jury instructions are no longer on the Internet
The Supreme Court declares the watershed exception "moribund"
Federal Crimes Statute Tracker
Jury instruction news from New York and Colorado
archived posts
 

trialdex blog

Welcome to the trialdex blog. Be sure to also check out the other free resources linked on the trialdex front page, including the jury instruction alerts.

Colorado Reporter's Online Update

The Colorado Model Criminal Jury Instructions Committee periodically publishes a “Reporter’s Online Update,” which includes developments in case law relevant to its formal instructions. The June 11 Update was posted this week.

(06/18/21) (permalink)

 

Greer and plain error

retroactivity infographic As you may know, one of the trialdex "litigation tools" is a Q&A that helps you analyze the retroactive effect of new Supreme Court decisions. You can click on the infographic on the right to see how it works.

The retroactivity tool was updated today so that it notes today's Supreme Court decision in United States v. Greer, which holds that Rehaif errors are not a basis for plain-error relief where defendants do not make a sufficient argument or representation on appeal that they would have presented evidence at trial that they did not in fact know that they were felons.

Today's decision was unanimous, and does not change the retroactivity tool's treatment of the issue. I just added the case because it had helpful language explaining one of the Olano prongs. For further background on Rehaif retroactivity, you might want to take a look at my (prescient, I think) 2019 blog entry, What is the potential retroactive effect of Rehaif?

(06/14/21) (permalink)

 

Progress report on the Federal Crimes Statute Tracker

The Federal Crimes Statute Tracker project is almost finished. The application displays a visual history of United States Code provisions that describe commonly charged federal felonies. It works like the "versions" feature on Westlaw, with the addition of a redline/strikeout view of the precise changes.

Here is what a typical page looks like:

screen shot

Click on the image to get a complete explanation.

I have finished Titles 8 and 18, and will be adding the remaining titles soon. It is still in "beta" and, of course, comments and suggestions are appreciated.

(06/12/21) (permalink)

 

Civil jury instruction news from Arizona

Arizona has posted Proposed Revisions to Personal Injury Damages instructions. Comments are due by June 30, 2021.

(06/11/21) (permalink)

 

California has posted a supplement to its Civil Jury Instructions (CACI)

Earlier this year the Judicial Council of California posted a new edition of its Civil Jury Instructions (CACI). This week it posted a May 2021 Supplement to those instructions. The changes are listed on pages v-vii of the document.

(06/04/21) (permalink)

 

The Vermont civil jury instructions are no longer on the Internet

The Vermont civil jury instructions appear to have been removed from the Vermont Bar Association Web site. I can't find them anywhere else on the Internet, on archive.org, or on Westlaw. I can't find an explanation on the Bar's Web site, either. I sent them an email, and will update this post with any new information. If anybody knows more about this, please email me.

(05/22/21) (permalink)

 

The Supreme Court declares the watershed exception "moribund"

Today the Supreme Court, in Edwards v. Vannoy (U.S. May 17, 2021), rejected a federal post-conviction claim of a man sentenced to life in prison by a state court after being found guilty of a number of violent crimes by a non-unanimous jury.

At the time of the Edwards' trial (fifteen years ago) it was generally understood that such verdicts were lawful because of a split decision in Apodaca v. Oregon, 406 U.S. 404 (1972). But any notion that Apodaca allowed non-unanimous verdicts was rejected by the Supreme Court last year in Ramos v. Louisiana, 140 S.Ct. 1390 (2020).

This raised the question of whether prisoners like Edwards, whose state trials and direct appeals ended years ago, could raise the issue collaterally in federal court. A previous trialdex blog entry, "What would be the retroactive effect if Ramos wins his case?" (10/21/19), discussed this issue in considerable detail. I think that things have played out as that article predicted, but with an interesting twist.

Edwards' federal petition for habeas corpus under 28 U.S.C. § 2254 ("State custody; remedies in Federal courts") was properly rejected because the Ramos decision announced a new procedural rule. New procedural rules are not available on federal collateral review. This can be shown graphically using this infographic from the trialdex retroactivity litigation tool (if the print is hard to read on your screen, blow it up to a full size PDF by clicking on the image):

retroactivity infographic

For the Edwards case, follow the arrows to "is seeking collateral review," "in custody," "new rule," and "procedural." This is more fully explained in the Q&A that accompanies the infographic, but I'll outline it here.

Persons filing § 2254 petitions must be in custody, not an issue for Edwards, who is serving a life term.

A rule is new when it breaks new ground or imposes a new obligation on the government. A rule is old if the result was dictated by precedent existing at the time the defendant's conviction became final, i.e., it would have been apparent to all reasonable jurists. A case does not announce a new rule when it is merely an application of the principle that governed a prior decision to a different set of facts. See Chaidez v. United States, 568 U.S. 342, 347 (2013). A rule requiring unanimous verdicts in state cases would be a new rule.

Courts then look to see whether the rule is substantive or procedural. Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016). Procedural rules are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining culpability. Id. A rule requiring unanimous verdicts in state cases would be a procedural rule.

Before today, there was something called the "watershed" exception. See Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v. Lane, 489 U.S. 288 (1989). New procedural rules could nevertheless be reviewed if they are "watershed" rules. This exception has been narrowly defined over the years, and more to the point, has never been applied.

My 2019 blog article noted the watershed exception, and explained why an exception that the Supreme Court has never recognized would almost certainly not be recognized here. The Supreme Court today decided to get rid of the exception entirely.

Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time–probably long past time–to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund.
The reasoning is quite sound. If the exception is a unicorn, why should courts waste time litigating it?

(05/17/21) (permalink)

 

Federal Crimes Statute Tracker

If you are sharp-eyed, you might have noticed the new link on the front page to the Federal Crimes Statute Tracker. At this point it is not a completed project, but more of a proof of concept (I have only done six statutes so far). But I expect to have all of the most commonly charged federal crimes posted in the next month or so.

It is a statutory history application that works like the "versions" feature on Westlaw, with the addition of a focused redline/strikeout view of the precise changes.

Beyond flagging recent legislation, these views can be important in interpreting case law, since they allow you to see at a glance whether case holdings have been affected by subsequent amendments to the statute.

(05/14/21) (permalink)

 

Jury instruction news from New York and Colorado

The following jury instruction revision notes, dated May 2021, showed up this week on NYCourts.gov:

General Applicability

  • CJI2d Temporary & Lawful Possession - Revised
  • CJI2d Interested Witness – amplified case annotations
  • CJI2d Credibility instructions amended to include:
    [Add if the defendant testified: And you should evaluate the testimony of the defendant in the same way as you would any other witness.]

Penal Law

  • Per L. 2021, c. 92, marked Penal Law art. 221 (Marihuana) repealed, and moved repealed Penal Law sections 220.06(4), 220.00(10), and 220.34(3) to a section on former Penal Law charges.
  • Added sections: 240.31(2), 240.60(5); 240.60(6), 265.10(2) (sentence 1), 265.10(3) (sentence 1).
  • Added Monetary Laundering sections 470.05, 470.10, 470.15, and 470.20.
  • Amended 120.06, 120.07, 160.10(1) to include in footnotes decision law on the element of aided by another actually present.
  • Revised 155.30(2)-(4)-(7)-(11) and 165-45(2) to include amplification of the definition of “credit card” pursuant to a Court of Appeals decision.
  • Revised 170.10 to include an amplified definition of “credit card” pursuant to a Court of Appeals decision.
  • Revised 170.25 to include an amplified definition of “credit card” pursuant to a Court of Appeals decision and to amend the presumption about a person who possesses two or more forged instruments to require, pursuant to Court of Appeals decision, that the person “knowingly” possess two or more forged instruments.
  • Revised 240.31(1), 485.05, 490.27 to accord with statutory amendments related to gender identity.

The Colorado Model Criminal Jury Instructions Committee periodically publishes a “Reporter’s Online Update,” which includes developments in case law relevant to its formal instructions. The May 3 Update was posted this week.

(05/07/21) (permalink)

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