by Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense" There are times that a police officer or prosecutor may wind up in the jury panel, or even seated in the box. As you know, when selecting a jury, if you question a witness who seems to have a bias, the witness may make an expurgatory statement that, “Of course, I can be fair,” and you may wind up having to use a peremptory. But there are some kinds of challenges for cause for which that “expurgatory oath” does not work. Often, judges will let these potential jurors go on challenges for cause, but someti ..read more

 Attempted Assault in the Second Degree  for Assault of a Police Officer is Not a Crime by  Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense"   PL 120.05(3) is the statute that makes assault on a police officer a felony.  That charge is not based on an intent to cause injury to an officer.  For the reasons described in People v. Campbell, a 1988 decision excerpted below, an attempt to engage in an act with unintended consequences may not be a cognizable crime.  That is sometimes referred to as “impossibility” – that it ..read more

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Says United States District Court Judge Carlton W. Reeves, our new hero: "Clarence Jamison was a Black man driving a Mercedes convertible. As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs. Nothing was found. Jamison isn’t a drug courier. He’s a welder." Read on here. It's long, but every word is worth your time.  And just in case you forgot this stunning speech, at the sentenc ..read more

In 1982, in his book “The Best Defense,” Alan Dershowitz listed what he called the Rules of the Justice Game. Among these were the following: Rule III: It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.  Rule IV: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.  Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV.  Rule VI: Many prosecutors implicitly e ..read more

New York’s bail reform statute, while only in existence for just over a month, has generated numerous news stories, opinion pieces, and critical articles. Already, there have been calls for the law’s repeal (In the words of one state senator’s call for repeal: “This is only a partial list of offenses that allow criminals to leave prison without bail. These ‘reforms’ are now giving a free pass to many individuals who commit serious crimes that place our communities at risk” [https://www.nysenate.gov/petitions/james-l-seward/repeal-bail- reform]). These criticisms often equate having been charge ..read more

by Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense" Lesser included offenses may come into play at various stages of a case, such as a court's inspection of grand jury minutes and possible reduction of charges, pleas, TODs, the defense theory of the case, and as addressed below, the jury charge at the end of a case.  There are times that you may wish to request that the jury be charged on a lesser included offense.  This means that if the jury concludes the defendant is not guilty of the top count, they may consider a lesser count.  Alt ..read more

by Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense" A judge must respond to a jury's questions in a way that meaningfully answers the question and does not add new principles of law to those they originally received.  (Some practice tips at the end.)     In People v. Wood, 163 AD3d 1485, 2018 Slip Op 05422, (4th Dept July 25, 2018),  the Fourth Department considered whether the trial court adequately responded to the jury's questions about intent and knowledge.  Defendant was accused of brandishing a weapon in a ..read more

by Brian Shiffrin     It is important understand the differences between actual bias and implied bias of prospective jurors. CPL§ 270(1)(b), deals with a prospective juror  who has evinced an actual bias, defined as  “a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” If a juror’s statements during voir dire raise a doubt about his impartiality, such as statements that he has a pre-formed opinion about the case, that juror cannot be permitted to sit unless he states unequivocally that he can be fair ..read more

by Jill Paperno, Author of "Representing the Accused: A Practical Guide to Criminal Defense" There is a body of law that bars discriminatory use of challenges to jurors based on a Supreme Court decision, Batson v. Kentucky 476 U.S. 79.  When you are challenging a prosecutor's discriminatory  use of jury challenges, it is called "making a Batson challenge."    In People v. Herrod, the Fourth Department reminds us of the process and standards to be applied in Batson challenges.  One way prosecutors often oppose our Bat ..read more