Misstatement of Essential Element for Crime Requires Murder Conviction Reversal

A murder conviction was reversed due to a prosecutor’s misstatement of law regarding an element of the crime that was central to the evidence presented at trial

United States v. Williams, 2016 BL 287661, D.C. Cir., No. 12-3029, 9/2/16.

   The D.C. Circuit found that a prosecutor’s misstatement of law was egregious enough to warrant a reversal of a murder conviction because it implicated the mens rea requirement of the crime. The court found that the prosecutor misstated the law which could have “led some jurors to believe they could not consider the victim’s consenting behavior,” even though the jury instructions were accurately presented. The court feared that the instructions, however, did not go far enough to cure the inaccurate closing argument by the prosecutor. The court emphasized that the intent statement made by the prosecutor was problematic because “it effectively forbids the jury from considering certain evidence, rather than merely telling the jury which elements it must find and how to weigh the evidence.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Williams_No_123029_Consolidated_with_133058_2016_?1474479965

“Could Have” Gotten a Warrant Is Not Inevitable Discovery

Police testimony that they “could have” gotten a warrant before performing a search is too speculative to invoke an inevitable discovery exception to the exclusionary rule

Gore v. United States, 2016 BL 267572, D.C., No. 15-CM-354, 8/18/16.

   The D.C. Circuit joined the Second and Eighth circuits finding that “could have” gotten a warrant before executing a search is too speculative to be “inevitable” because there is indication of whether lawful procedures were already in the works during the illegal search. The court ruled, finding that the constitutional standard to be used is “would’ve,” not “could’ve” or “might’ve.” If officers “could’ve” gotten a warrant, then it lacks the necessary certainty to trigger the exception to the exclusionary rule that would have allowed them to perform the search.

   The First, Second, Third, Fourth, Sixth, Ninth, and Tenth circuits apply a softer standard, only requiring that the government to show that if the police were following routine standards, then they could have used lawfully secured the evidence.

http://www.bloomberglaw.com/public/document/Gore_v_United_States_No_15CM354_2016_BL_267572_DC_Aug_18_2016_Cou.

Federal Prosecutor Guide Book Exempt from Freedom of Information Act

The Federal Criminal Discovery Blue Book, used by federal prosecutors in preparing for discover, is exempt from the FOIA due to its status as attorney work-product

N.A. of Criminal Def. Lawyers v. U.S. Dep't of Justice Exec. Office for U.S. Attorneys, 2016 BL 230755, D.C. Cir., No. 15-5051, 7/19/16

The D.C. Circuit affirmed a lower court’s ruling that the Federal Criminal Discovery Blue Book used by federal prosecutors was exempt to the Freedom of Information Act (FOIA). The lower courts held that the Blue Book was privileged attorney work-product, which is exempted from the FOIA under Exemption Five. This exemption permits the government to withhold documents that would be privileged in civil litigation.

Although the Blue Book was not created in preparation for any specific litigation, the use for general litigation and it likelihood of being used “sufficiently…warrant application of the work-product privilege.” The court further held that the strategic advice in the book was so integrated that it would be unreasonable to produce the portions of the book that are not work-product.

http://www.bloomberglaw.com/public/document/Natl_Assn_of_Criminal_Def_Lawyers_v_DOJ_No_155051_2016_BL_230755_.

Limited Warrant Okay For DNA Test of Victims and Witnesses in Assault

Under certain circumstances, police may gather DNA evidence of a non-cooperative victim or witness with a limited use warrant even if they are not suspected of any criminal wrongdoing.

In re Grand Jury Witness G.B., 2016 BL 167249, D.C., No. 15-CO-531, 5/26/16.

    The Supreme Court found that a minimally invasive DNA test was permissible with a limited-use warrant of a victim and witness in a crime, as long as the test is reasonable. The defining factors of reasonableness as identified by the court were the scope and manner of the test. In this instance, the test was a minimally invasive buccal swab that could be performed easily anywhere. The court also took into consideration that the test results were not allowed to be entered into a government database or be used to prosecute the victim for perjury. Moreover, the samples gathered after the test could be immediately destroyed after the investigation. 

http://www.bloomberglaw.com/public/document/In_re_GB_No_15CO531_2016_BL_167249_DC_May_26_2016_Court_Opinion