Archive | Sixth Amendment

Friday, September 29th, 2023

Supreme Court will revisit the application of the Confrontation Clause to forensic evidence.

The Supreme Court has granted certiorari in Smith v. Arizona, No. 22-899. The question presented is:

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

Defense counsel should be sure to make Confrontation Clause objections whenever the government seeks to use or admit forensic evidence at trial without calling the individual (or all of the individuals) who actually performed all of the underlying forensic testing.

Smith will hopefully bring some clarity to this area of law. The Supreme Court has long held that criminal defendants have a …

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Categories: Confrontation Clause, Sixth Amendment

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Friday, June 23rd, 2023

Supreme Court holds that a defendant tried in an improper venue may be retried if the conviction is overturned on that ground.

In Smith v. United States, decided June 15, 2023, the Supreme Court ruled that if a defendant is successful in showing that their trial was held in an improper venue, the government is nonetheless permitted to retry them in the proper venue.

The Court reasoned that nothing in the language or history of either the venue clause of Art. I, section 2, clause 3 or the vicinage clause of the Sixth Amendment bars a retrial.  The Court further ruled that double jeopardy is not implicated because reversal on venue grounds is unrelated to factual guilt or innocence and does not resolve the “bottom-line question of criminal culpability.”

The decision unanimously affirmed the Eleventh Circuit in an opinion by Justice Alito.…

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Categories: double jeopardy, Sixth Amendment, venue

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Tuesday, January 17th, 2023

The government’s use of a former cellmate’s testimony to introduce a defendant’s statements about his planned trial strategy didn’t violate the Sixth Amendment right to the effective assistance of counsel where the witness wasn’t a government informant when the defendant confided in him. Also, a federal probation officer’s warrantless search of the home and car of a person “serving a term of supervised release” didn’t violate the Fourth Amendment because the probation officer needed only a “reasonable suspicion” to search, not a warrant or probable cause. United States v. Chandler, No. 18-1841, 56 F.4th 27 (2d Cir. [Dec. 27,] 2022) (C.J.J.’s Lynch, Carney, and Sullivan).

This appeal addresses a Fourth Amendment claim raised in the context of a Probation Officer’s search of the home and car of  “an individual serving a term of supervised release.” The Circuit concludes that the searches were valid because the Probation Officer had a “reasonable suspicion” that the defendant was committing crimes.

The case also addresses the scope of a defendant’s Sixth Amendment right to the effective assistance of counsel “when the government presents a witness to whom the defendant has volunteered his thoughts about defense strategy and who, after learning the defendant’s thoughts, agrees to testify for the government.” Here, the government witness was a person who shared a jail cell with the defendant, during a two-week period of pretrial detention, and later became a government informant. Because the witness “was not a government informant when Chandler spoke to him about Chandler’s expected trial strategy, the government did not …

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Categories: Fourth Amendment, reasonable suspicion, Sixth Amendment, supervised release

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Thursday, September 8th, 2022

Three Interesting Cert. Petitions

Our friends at recently discussed three pending cert. petitions that present important and interesting criminal issues. Because these issues may arise in your practice, I note them again here so that you can preserve them for review:

  1. Shaw v. United States, No. 22-118.

Issues:  (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial …

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Categories: Fifth Amendment, First Amendment, Fourteenth Amendment, Sixth Amendment

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Monday, April 19th, 2021

Supreme Court Grants Review to Clarify Rules Governing Forfeiture or Waiver of Constitutional Right to Confront Witnesses

The Supreme Court granted certiorari today in Hemphill v. New York (No. 20-637), to resolve the following question: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”

The facts are straightforward. In 2006, someone fired a 9- millimeter handgun during a melee in the Bronx, killing a child in a passing car. When Hemphill was tried for the crime, he contended that the shooter was another man at the scene, Nicholas Morris. As part of that defense, Hemphill elicited testimony that the police had recovered a 9-millimeter cartridge on Morris’s nightstand hours after the shooting. The State then successfully moved to introduce a guilty plea from Morris in which he said he possessed a different gun—a .357 revolver—at the scene of the shooting. The New York courts rejected Hemphill’s claim that …

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Categories: Confrontation Clause, Sixth Amendment

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Monday, November 23rd, 2020

Second Circuit affirms conviction of payday-loan lender on RICO and Truth in Lending Act (“TILA”) charges. United States v. Moseley, __F.3d__, No. 18-2003-cr, 2020 WL 6437737 (2d Cir. Nov. 3, 2020) (Circuit Judges: Kearse, Carney, Bianco).

In  United States v. Moseley, No.18-2003, 2020 WL 5523210 (2d Cir. Nov. 3,  2020) , the Second Circuit holds that the choice-of-law provisions in the defendant’s payday-loan agreements — which named  3 jurisdictions that don’t have usury laws — were unenforceable under New York law, so  the usury laws of New York applied in the case of loans to New York residents. And, here, the RICO counts were based on New York domiciled  borrowers . The agreements also didn’t sufficiently disclose the total payments the borrower would have to make on the loans, as required by TILA.

The loans

Richard Moseley operated a payday-loan business, between 2004 and 2014,  in which he “lent money to borrowers in New York and other states at interest rates exceeding —by many multiples—the maximum legal interest rates allowed in those states; in its loan documents, it failed to meet TILA disclosure requirements; and …

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Categories: due process, hearsay, RICO, Sixth Amendment

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Friday, May 1st, 2020

Pop off, G-Unit

In a murder-for-hire trial, is it constitutional for a defense attorney to concede—over his client’s objection—that the client hired someone to shoot at the victim (an element of the offense), but argue that the client did not intend for the victim to die?

This may seem like a strange strategic choice, but it starts to make more sense in context. On May 1, 2020, in United States v. James Rosemond, No. 18-3561, the Second Circuit takes a foray into the world of hip hop while considering a defendant’s Sixth Amendment autonomy rights.

Rosemond, aka “Jimmy Henchman,” was a manager and music executive whose Czar Entertainment managed, among others, The Game, Brandy, Gucci Mane, and Salt-n-Pepa. Czar had a rivalry with Violator Records, whose offices were located across the street. Violence ensued. Per the Second Circuit,

The rivalry intensified in February 2005. At that time, Czar represented rapper Jayceon Taylor,

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Wednesday, July 11th, 2018

NACDL Report on the Trial Penalty

The National Association of Criminal Defense Lawyers (NACDL) recently released a report that is somewhat provocatively, but fairly, titled: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.  The report, available here, offers a succinct assessment of the legal and institutional pressures that coerce 97% of state and federal defendants into plea bargains.

From the Executive Summary:

[O]ver the last fifty years, trial by jury has declined at an ever-increasing rate to the point that this institution now occurs in less than 3% of state and federal criminal cases. Trial by jury has been replaced by a “system of [guilty] pleas”3 which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.

Guilty pleas

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Monday, April 4th, 2016

Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S.

There were no Circuit opinions or summary orders today.

The Supreme Court decided Nichols v. United States, No. 15–5238. A unanimous Court, per Justice Alito, held that a sex offender residing in Kansas who moved to the Philippines could not be prosecuted under SORNA for failing to update his registration in Kansas after the move.

In Woods v. Etherton, No. 15–723, the Court summarily reversed the Sixth Circuit’s grant of habeas relief on an ineffective assistance of counsel claim.

And the Court granted certiorari in Pena-Rodriguez v. Colorado, No. 15–606, where the question presented is: “Whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.”

I’ll be back with a more detailed recap later today.…

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Categories: sex offenses, Sixth Amendment

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Wednesday, March 30th, 2016

Supreme Court: Pretrial Restraint of Untainted Assets Needed to Hire a Lawyer is Unconstitutional


No opinions or relevant summary orders from the Second Circuit today.

Operating with only 8 justices, a fractured Supreme Court today decided Luis v. United States.  The Court’s holding is that “pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.”

Justice Breyer’s plurality opinion, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, explains that 18 U.S.C. § 1345 generally authorizes the government to freeze the assets of people accused of federal banking or health-care crimes.  Specifically, § 1345(a)(2)(B)(i) authorizes the pretrial restraint of “property of equivalent value,” meaning property that is neither “obtained as a result of” nor “traceable to” the alleged crime.

This license to freeze “property that is untainted by the crime, and that belongs fully to the defendant,” violates the Sixth Amendment if such funds (in Luis’s case, some $2 million) are needed to hire counsel of …

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Categories: forfeiture, right to counsel, Sixth Amendment

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Thursday, August 16th, 2012

Penalty Blocks

United States v. Jacques, No. 11-2142-cr (2d Cir. July 9, 2012) (Winter, Chin, Droney, CJJ)

In this capital case, the district court entered an order excluding some evidence that the government intended to offer at the penalty phase. On this, the government’s interlocutory appeal, the circuit reversed in part and affirmed in part.


Michael Jacques was charged with the kidnaping, rape and murder of a young girl. In the death notice, the government included aggravating factors that it would seek to prove at the penalty phase: allegations of prior rapes, and an attempt to obstruct justice by influencing the testimony of a victim/witness. The district court permitted evidence of two of the prior rapes – one of a juvenile and one of an adult – but struck three of the prior rape allegations, all of which involved juveniles (J2, J3 and J4), finding that the conduct was …

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Categories: death penalty, Sixth Amendment, Uncategorized

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