articles written by attorney john l. calcagni iii
Click on a link to view the article:
- How Much Does It Cost To Hire A Defense Attorney
- Rhode Island Bar Association Publication: The Constitutionality of Restricting Criminal Defendant Opening Statements
- Defending Wrongful Cocaine Use Cases
- Why Hire a Trial Attorney?
- Grand Jury Subpoenas
53 RI Bar Jnl. 5, *
Copyright (c) 2005 by the Rhode Island Bar Association
Rhode Island Bar Journal
January/February, 2005
53 RI Bar Jnl. 5
John L. Calcagni III, Esq
John L. Calcagni III at the time of publication was (is) a Captain in the United States Army Judge Advocate Generals' Corps (currently) assigned to loth Mountain Division (Light Infantry) as the Division's Claims Judge Advocate.
TEXT:
[*5]
I. Introduction
In Rhode Island, Rule 26.2 of the Rhode Island Rules of Criminal Procedure (Rule 26.2) sets forth the rule for making opening statements at trial. The rule provides that "before any evidence is offered at trial, the State may make an opening statement. If a defendant chooses to make an opening statement, he or she may do so just prior to the introduction of evidence by the State, or just prior to presenting his case." n1 Although the plain language of Rule 26.2 appears to provide criminal defendants with the opportunity to present an opening statement, the Rhode Island Supreme Court (the Court) has substantially limited its application. The Court's interpretation of Rule 26.2 has resulted in a trial practice that precludes criminal defendants who do not present affirmative evidence at trial from making an opening statement. n2 These defendants include those who have made a strategic choice not to present any evidence, those who are unsure at the beginning of he trial whether to present evidence, n3 and those who are without sufficient facts to do so. As a result, the Court has empowered Rhode Island trial judges to preclude many criminal defendants from making opening statements.
n1 R.I. R. Crim. P. Rule 26.2 (2002).
n2 State v. Byrnes, 433 A.2d 658 (R.I. 1981).
n3 State v. Turner, 746 A.2d 700 (R.I. 2000); State v. Bleau, 649 A.2d 215 (R.I.) 1994).
This article examines the constitutionality of this controversial Rhode Island practice. Section II sets forth the current law in Rhode Island pertaining to a criminal defendant's ability to make an opening statement. Section III discusses the importance of the opening statement, to include both its purpose and effect in the trial process. Section IV analyzes the constitutional implications of Rhode Island's practice of restricting criminal defendants from making an opening statement. Finally, Section IV concludes that the practice is unconstitutional and proposes potential solutions for returning to an entire class of criminal defendants their most valued rights -- those guaranteed by the U.S. Constitution.
II. Opening Statements: Rhode Island Law
The Court first restricted a criminal defendant from presenting an opening statement in State v. Byrnes. n4 In Byrnes, the defendants were charged with the robbery of a commercial safe deposit company. At trial, the defense did not have adequate evidence to present an affirmative case. As a result, defense counsel requested the opportunity to make an opening statement comprised of instructing the jury to "pay attention to such factors as the [state] witnesses' demeanor, their prior criminal involvement, their explanation about particular aspects of evidence which might be developed on cross-examination, and the reasons for any inconsistencies in their testimony." n5 The trial judge denied the request and restricted counsel from presenting an opening statement. The defendants were subsequently convicted.
n4 433 A.2d 658 (R.I. 1981).
n5 Id. at 664.
On appeal, the Court affirmed the trial court's limitation, finding that the trial court did not abuse its discretion by limiting the scope of an opening statement. In support of its decision, the Court cited an Idaho case that sustained a limitation on a defendant's opening statement. n6 The Idaho court held that "opening statement is not an appropriate vehicle in which to impeach or otherwise argue the merits of evidence that the other side will or will not present." n7 Thus, the Court in Byrnes concluded that the trial court's ruling was sound. n8
n6 Id.
n7 Id., quoting State v. Griffith, 539 P.2d 604, 608 (Idaho 1975).
n8 Id.
Several years later, in State v. Bleau, n9 the Court extended its practice of limiting a criminal defendant's ability to present an opening statement. In Bleau, a criminal defendant was charged with leaving the scene of an accident. At trial, the defense was denied the opportunity to present an opening statement on the basis that counsel was unsure whether it would present any evidence to the jury in its case-in-chief. Ultimately, the defendant was convicted. Resting on its decision in Byrnes, the Court held that "the proper function of an opening statement is to apprise the jury with reasonable succinctness what the issues are in the case that is about to be heard and what evidence the prosecution and defense expect to produce at trial in support of their respective positions." n10 Since the defense was uncertain as to what, if any, evidence it would present, the trial court's restriction against making the opening statement was affirmed. n11
n9 649 A.2d 215 (R.I. 1994).
n10 Id. at 217 (quoting State v. Byrnes, 433 A.2d 658, 664 (R.I. 1981)).
n11 Id. at 218.
Finally, in State v. Turner, n12 a defendant charged with breaking and entering was denied the opportunity to present an opening statement. As the basis for its ruling, the trial court cited the defendant's refusal to testify and his failure to present any affirmative evidence at trial. n13 The defendant was convicted and predictably, the conviction was affirmed. n14 Why did the Court affirm this conviction?
n12 746 A.2d 700 (R.I. 2000).
n13 Id. at 703-04.
n14 Id.
The Court contends that the trial practice it has created does not completely ban a defendant's ability to make an opening statement. n15 Rather, the Court asserts that the practice only limits the scope of a defendant's opening statement to what evidence the defendant expects to produce at trial. n16 However, the effect of this practice in Rhode Island does substantially more than limit the scope of opening statements. Instead, it creates a ban on the presentation of opening statements for an entire class of criminal [*6] defendants.
n15 Bleau, 649 A.2d at 217.
n16 Byrnes, 433 A.2d at 664.
An examination of the Court's decisions establishing this practice reveals only one logical rationale for the court's holdings: to preclude the defense from presenting an argument at the beginning of trial. The Court draws the erroneous conclusion that the only purpose of an opening statement when the defense has no affirmative evidence is to present argument. This conclusion is erroneous because it overlooks the important purposes of an opening statement, which are to present to the jury the defense's story and theme of the case, to humanize the trial, and to rebut the prosecution's case.
III. The Importance of the Opening Statement
1. Purpose
The opening statement is the stage of the trial where defense counsel gets the first opportunity to speak about the merits of his case. n17 The opening statement is also the moment at trial when a lawyer makes the first impression to the jury of himself, his client, and the case to be presented. n18 Although opening statements are generically defined as an outline of what an attorney expects to prove during trial, n19 they serve several other important functions.
n17 Steven Lubet, MODERN TRIAL ADVOCACY 309 (NIT 2000); Carman E. Kipp, DEFENDANT'S OPENING STATEMENT, 8 UTAH B.J. 21 (1995).
n18 James R. Lucas, OPENING STATEMENTS, 13 U. HAW. L. REV. 349, 351 (1991).
n19 Id. at 349.
A. Story of the Case: Theme and Theory
One crucial function of an opening statement is to educate the jury about the defendant's case. n20 This involves conveying to the jury a theme and theory with which it should view the evidence to be presented. n21 The most successful litigant is often the one who convinces the jury to adopt his or her theme of the case. n22 An effective theme captures the moral force of a case and communicates to the jury why one side is right and the other is wrong. n23 For instance, in a criminal trial, the defense's theme will consist of how the alleged crime occurred and why the defendant is not guilty. n24 Once the theme is communicated, counsel must then set forth the theory of their client's case.
n20 Steven P. Grossman, TRYING THE CASE: OPENING STATEMENTS, 1999 MD. INST. CLE LAW, at 19.
n21 Id.; Lubet, supra note 20, at 318-20.
n22 Grossman, supra note 23, at 19.
n23 Lubet, supra note 20, at 319.
n24 John J. Eannace, AN ART -- NOT A SCIENCE: CRIMINAL LAWYER'S PERSPECTIVE ON OPENING STATEMENTS, NB NAT'L B. ASS'N MAG., Nov. - Dec. 1997, at 41.
A successful theory is a story of the case that adopts a provable set of facts, which along with the legal principles, leads the fact finder to the sole conclusion that the defendant must prevail. n25 This is the lawyer's first chance to persuade the jurors. The mood and tone of the case are set before getting into specific legal aspects and evidentiary issues. n26 This enables the jury to get an idea of the factual context of the case and to prepare to assimilate and integrate the evidence as it unfolds at trial. n27 Once the jury is introduced to the theory, it will have a concrete reference frame from which to sort and organize the evidence to be presented. n28
n25 Lubet, supra note 20, at 318.
n26 Jim Moody, TRIAL NOTEBOOK, TRIAL STRATEGY, OPENING STATEMENT, 29 ARK. LAW. REV. 29 (1995).
n27 Lucas, supra note 121, at 350.
n28 Id. at 375; Matthew J. O'Connor and Nicholas B. Schopp, OPENING STATEMENT RESTRICTION LIFTED? ARE THE SCALES OF JUSTICE TIPPING BACK TO EVEN AFTER STATE V. THOMPSON, 58 Mo. B.J. 35, 37 (2002).
B. Humanize the Trial
Opening statements also serve the important function of humanizing the trial process. n29 To do so, counsel should first personalize herself or himself to the jury. n30 This is significant because it allows counsel to make a first impression -- one that counsel will never get a second chance to make. Because first impressions harden like cement, n31 defense counsel must seize this opportunity to earn the jurors' trust and respect. It has been found that jurors are more apt to believe the lawyer whom they trust the most. n32 As a result, the impressions formed during opening statements may govern how the jury will consider and analyze the evidence presented throughout trial. n33
n29 Grossman, supra note 223, at 9, 20, 2.
n30 Moody, supra note 229, at 29.
n31 Lucas, supra note 21, at 351.
n32 Patricia C. Bobb, WINNING YOUR TRIAL IN OPENING STATEMENT, 2001 ATLA CONV. REF. MAT. at 66.
n33 Eannace, supra note 27, at 41.
Defense counsel may also use the opening statement to personalize her or his client. n34 This is achieved by painting the defendant as a human being as [*7] opposed to the prosecution's portrayal of the defendant as an inanimate object. Personalizing a criminal defendant may help create sympathy for the accused in light of heightened allegations set forth by the government. n35 Overall, the jury will perceive the defendant as a person to whom they can relate, and not a mere widget of the criminal justice system.
n34 Moody, supra note 33, at 29.
n35 Grossman, supra note 232, at 9.
When humanizing the trial, counsel must also confront the jurors' sympathy for the victim(s). n36 As human beings, jurors often decide cases with their hearts and not their heads. n37 Emotions and personal experiences often influence verdicts more than the law and facts presented at trial. By addressing this sympathy, counsel will depict his understanding of the tragedy caused by the crime. This may heighten the jurors' perception of counsel's humanity and help offset any negative preconceptions they may have of criminal defense attorneys.
n36 Id. at 13.
n37 Id. at 7.
Counsel should also address the jurors' oath. n38 Counsel may do so by reminding them that they have sworn to uphold the justice system and to follow the court's instructions. This admonition will display to jurors the severity of their duty and grave consequences they have the power to effect.
n38 Kipp, supra note 120, at 23.
After opening statements, defense counsel will not have another opportunity to speak directly to the jury until summation at the end of the trial. As a result, it is pertinent to address the human aspects of trial before the presentation of evidence commences. Doing so provides the jury with an initial understanding of the people present at trial and, most importantly, whose fate they must decide.
C. Outline the Evidence
Opening statements are typically defined as counsel's outline of the evidence to be presented. n39 Often referred to as the "notice function," n40 counsel's objective is to explain the nature and elements of the issues to be presented, and outline the evidence that counsel intends to present. This provides jurors with a roadmap n41 to help lead them through the maze of evidence to follow. n42 Roadmaps assist jurors in following the evidence presented in order to arrive at counsel's desired conclusion. n43 By first presenting the theme and theory of his case, counsel psychologically sets up the jury to accept counsel's version of the facts. n44 Next, counsel persuasively outlines the evidence he or she expects to introduce at trial, both on direct and cross examinations, in a manner that supports the story of his client's case. If this process is conducted successfully, at its conclusion, the jury will ultimately be conditioned to find in counsel's favor. n45
n39 United States v. Dinitz, 424 U.S. 600 (1975); United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982); State v. Byrnes, 433 A.2d 658, 664 (R.I. 1981).
n40 Lucas, supra note 18, at 350.
n41 Grossman, supra note 20,at 5.
n42 Donna Fullenweider & Linda Hinds, OPENING STATEMENT: A KEY TO PERSUASION, 13 FAIR ARE 3, 4 (1993).
n43 Id. at 5.
n44 William Allison, TELL YOUR STORY THROUGH OPENING STATEMENT, 34 TRIAL 78, 82 (1998).
n45 Fullenweider & Hinds, supra note 445, at 5.
D. Rebut the Prosecution's Case
At a criminal trial, the prosecution has the burden to prove the defendant guilty beyond a reasonable doubt. Because the prosecution has the burden of proof, it is allowed to address the jury first by presenting its version of the facts and theory of how the crime occurred. When the prosecution concludes its casein-chief, a picture remains in the minds of jurors that, if allowed to linger unaltered, will be disastrous for the defense. n46 More specifically, if presented properly, the prosecution's opening statement will spell out the defendant's guilt. n47 This signals the importance of the defendant's need to present an opening statement.
n46 Hugo L. Black, Jr., THE JURY 1987: TECHNIQUES FOR THE TRIAL LAWYER: THE OPENING STATEMENT, 340 PLI LITIG. ADMIN PRAC. 709, 711 (1987).
n47 Id.
Following the prosecution, the jury expects to hear the defense respond to the State's allegations. Defense counsel must respond with an opening statement that not only sets forth the defense's theme and theory, but also addresses the weaknesses of the State's case. n48 The [*8] defense must also explain any conflicts that exist in its own case, if any, in an affirmative manner that is consistent with its story of the case. n49 Overall, the defense must rebut the State's case by explaining to the jury why the State is wrong and how the evidence supports a verdict of acquittal for the defendant.
n48 Moody, supra note 33, at 29.
n49 Id.
2. Effect
The most critical reason for allowing a criminal defendant's opening statement is the influence that opening statements have on ultimate jury verdicts. It has been urged by many scholars that cases are often won during opening statements, thus marking their importance.
According to the theory of primacy, people best remember things they hear first. n50 Opening statements, in addition to being at the beginning of trial, place jurors in a novel situation n51 because it is the first time that jurors are confronted by counsel advocating on behalf of their clients in open court. This novelty instills in jurors a heightened level of attention that is unlikely to exist at any other stage of the trial. n52 Therefore, counsel must take this opportunity to make a lasting impression and create the perspective from which jurors will view the evidence.
n50 Lubet, supra note 20, at 320; Matthew J. O'Connor, OPENING STATEMENT RESTRICTION GIVES PROSECUTION HEAD START, 56 J. MO. BAR. J. 100, 101 (2000).
n51 O'Connor, supra note 54, at 101.
n52 Id.
Studies show that 80% of jurors draw a conclusion about a case during the opening statement that they do not alter and do not change throughout the course of trial. n53 Instead, jurors simply seek from the evidence presented those portions that support their initial conclusions. n54 In such cases, the party that receives the winning verdict is the party whom the jury favored at the beginning of trial. n55 Alternatively, in cases where jurors do not conclusively form their decisions solely on the presentation of opening statements, jurors inevitably reach tentative decisions at the end of openings that influence their final verdict. n56 On this basis, if one has a presentable case, it should be over at the conclusion of the opening statement.
n53 Black, Jr., supra note 49, at 711; Eannace, supra note 27, at 41; Moody, supra note 33, at 29.
n54 O'Connor, supra note 54, at 101.
n55 Eannace, supra note 24, at 41.
n56 O'Connor, supra note 54, at 101; Steven H. Goldberg, WHAT YOUR OPENING STATEMENT SHOULD AND SHOULDN'T DO, 2 CRIM. JUST. 10 (1987).
The Rhode Island Supreme Court has effectively denied a class of criminal defendants the chance to present an opening statement. Depriving a defendant of the chance to present an opening statement, at the point in time when the defendant has the jurors' undivided attention and the initial opportunity to influence their ultimate verdict, is to prevent the defendant from participating in a significant segment of the trial process.
IV. The Constitutional Effect of Rhode Island's Trial Practice of Denying Criminal Defendants the Opportunity to Present an Opening Statement
While the U.S. Supreme Court has not yet held the presentation of an opening statement to be a constitutionally protected right, n57 trial and appellate courts alike have taken judicial notice of the importance of allowing criminal defendants to make opening statements. n58 In Rhode Island, however, the constitutional rights of these defendants have been placed in jeopardy.
n57 Salovitz, 424 U.S. at 21; Lucas, supra note 21, at 358.
n58 Hampton v. United States, 269 A.2d 441 (D.C. 1970); O'Connor, supra note 54, at 101.
1. Due Process: Right to Present a Complete and Meaningful Defense
The Fifth Amendment to the U.S. Constitution guarantees criminal defendants the right to due process. n59 The right to due process is also set forth in the Rhode Island Constitution, n60 which requires that criminal prosecutions comport with the notion of fundamental fairness. n61
n59 U.S. CONST. amend. V.
n60 R.I. CONST. art. I, § 2.
n61 California v. Trombetta, 476 U.S. 479, 485 (1984).
The U.S. criminal justice system and trial process are adversarial in nature. n62 The ultimate objective of a trial is to perform a truth-seeking function n63 where the guilty are convicted and the innocent [*9] are set free. n64 This system presumes a defendant's innocence and requires the government to prove the defendant's guilt beyond a reasonable doubt. n65 Although not required to prove his own innocence, the defendant responds to the prosecution's case by presenting a defense on the defendants' behalf either with the production of affirmative evidence or by arguing that the State has failed to meets its burden of proof.
n62 O'Connor, supra note 54, at 102.
n63 Id.
n64 Herring v. New York, 422 U.S. 853, 862 (1975).
n65 O'Connor, supra note 54, at 100.
The principles of fundamental fairness pursuant to due process require criminal defendants to be prosecuted by a fair trial. n66 To the defendant, a fair trial means the opportunity to present a complete and meaningful defense. n67 Such is necessary for the defense to adequately participate in a trial's truth-seeking process. The basic ingredients to a fair trial include the right to reasonable notice of the charges pending and the opportunity to be heard in one's own defense. n68 The opportunity to be heard, which guarantees the accused a fair opportunity to present a defense, includes at a minimum, the right to examine adverse witnesses, the right to offer testimony on the defendant's behalf, and the right to be represented by counsel. n69 As a whole, these aspects comprise the right to present a complete and meaningful defense.
n66 Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
n67 Rock v. Arkansas, 483 U.S. 44, 47 (1987); Crane v. Kentucky, 476 U.S. 683, 690 (1986); California v. Trombetta, 476 U.S. 479, 485 (1984); Washington v. Texas, 388 U.S. 14, 19 (1967).
n68 Chambers, 410 U.S. at 294.
n69 Washington, 388 U.S. at 18 (quoting In Re Oliver, 333 U.S. 257, 263 (1948)).
Like all constitutional rights, this right is not without limitations. n70 Accordingly, lawmakers have the latitude to establish rules that effectively exclude certain types of evidence from criminal trials providing these rules are not arbitrary and capricious. n71 Where there exists a conflict between a valid state interest and the exercise of a defendant's right, the competing interests are placed onto a balancing scale. n72 Where the State's interest outweighs the defendant and there exists other reasonable alternatives to protect the rights of the accused, the State will prevail. n73
n70 United States v. Scheffer, 523 U.S. 303, 308 (1998); Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002).
n71 Greene, 288 F.3d at 1090.
n72 Washington, 388 U.S. at 23; Greene, 288 F.3d at 1091.
n73 Scheffer, 523 U.S. at 317; Rock v. Arkansas, 483 U.S. 44, 62 (1987).
For instance, in California v. Trombetta, n74 the defendant was arrested for drunk driving. In preparation for trial, the defense counsel sought to obtain intoxilyzer test samples used by the arresting officer to determine Trombetta's intoxication. Counsel's request was denied on the basis that the police do not preserve intoxilyzer test samples. On appeal, Trombetta asserted that the destruction of the intoxilyzer samples denied his opportunity to present a complete and meaningful defense. The Supreme Court disagreed and concluded that Trombetta's rights had not been violated since he had additional means of proving his innocence. n75
n74 476 U.S. 479 (1984).
n75 Id. at 490-91.
Notwithstanding this latitude, State courts do not have the unfettered right to run judicial proceedings without rules. n76 There are customs and principals so deeply rooted in the conscience and traditions of our justice system that to deprive a defendant of a right in a criminal trial is an inexcusable constitutional error. Among these protections is the defendant's right to present a complete and meaningful defense. n77
n76 Taylor v. Withrow, 288 F.3d 846, 851 (6th Cir. 2002)(citing Montana v. Egelhoff, 518 U.S. 37, 42 (1996)).
n77 Faretta v. California, 422 U.S. 806, 818 (1975); Washington v. Texas, 388 U.S. 14, 19 (1967); Richmond v. Embry, 122 F.3d 866, 871 (10th Cir. 1997).
In order to establish a violation of the due process right to present a complete and meaningful defense, a criminal defendant must show a denial of fundamental fairness. n78 To succeed on such a claim, the court must find an absence of fairness that fatally infects the trial. n79 As such, the acts complained of must prevent the defendant from receiving a fair trial. n80 Rhode Island's trial practice of precluding criminal defendants from making an opening statement clearly violates the right to present a complete and meaningful defense and, therefore, fails to comport with fundamental fairness required [*25] by due process.
n78 Richmond, 122 F.3d at 872 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982)).
n79 Id.
n80 Id.
In a criminal trial, if the defendant does not have any witnesses or evidence to present in his case-in-chief, the defendant's sole remedy is to defend against the prosecution's case by presenting an opening statement, conducting cross-examinations of the State's witnesses, and making a closing argument. By taking away the opportunity to present an opening statement, the State diminishes one third of the accused's entire defense. As a result, the remaining defense is substantially less than complete and meaningful.
In Rock v. Arkansas, n81 the defendant was charged with the manslaughter of her husband. At trial, Rock was precluded from testifying on her own behalf where the testimony to be elicited was prompted by her previously undergoing hypnosis to refresh her lapsed memory. The exclusion of the testimony was based on an Arkansas Supreme Court rule that precluded the admissibility of hypnosis testimony on the basis of its unreliability. On appeal, the United States Supreme Court ruled that, "fundamental to a personal defense is an accused's right to present his own version of events." n82 On this basis, the Court held that the Arkansas Supreme Court's per se exclusionary rule precluded Rock from presenting her own version of the facts and, therefore, deprived her of the right to present a complete and meaningful defense. n83
n81 483 U.S. 44 (1987).
n82 Id. at 47.
n83 Id. at 53.
In Rhode Island, the defense is similarly precluded from presenting its version of the facts in response to the version set forth by the prosecution. Rebutting the prosecution's case is the aspect of the opening statement that is most significant to criminal defendants. When the defense is precluded from doing so, the jury is tainted by the impression that the defense concedes the version of facts presented by the State. It is not until the closing argument that the defense is allowed its first opportunity to address the jury and present its own story of the case. At such time, the trial is near its conclusion. Meanwhile, the jury has remained under the false impression created by the prosecution.
As discussed in Section II, opening statements have a strong impact on jury verdicts. To permit the State in an opening statement to shape the perspective [*26] from which jurors will view the evidence to be presented and not permit the defense an opportunity to respond implies a presumption of guilt. n84 The jury expects to hear the defense respond to the State's allegations. When it fails to do so because of Rhode Island's practice, the defense's silence implies an admission of guilt to the crime(s) charged. n85 This is contrary to our adversarial system, which provides criminal defendants with a presumption of innocence. Accordingly, the defendant is prejudiced by a direct violation of the defendant's right to present a complete and meaningful defense.
n84 supra note 54, at 101.
n85 Id.
Rhode Island's trial practice also violates the due process principals of fundamental fairness by permitting the prosecution to bring a case against the defendant on an uneven playing field. n86 Although Rule 26.2, on its face, appears to create equality between the prosecution and defense, Rhode Island case law distorts this perception. Rule 26.2 permits both the prosecution and the defense the opportunity to present an opening statement. n87 However, although not discernable from the text of the rule, the defense's ability to make an opening statement is conditional upon its presentation of evidence at trial. If the defense chooses not to present an affirmative case or due to the facts and circumstances of the case is unable to do so, the opportunity to make an opening statement is prohibited. The prosecution, however, maintains the unrestricted ability to make an opening statement.
n86 Id. at 102.
n87 R.I. Crim. P. Rule 26.2 (2002).
In Conde v. Henry, n88 the defense was precluded from making a closing argument where it would have argued that the State failed to meet its burden of proving robbery or intent to commit robbery beyond a reasonable doubt. However, the prosecution was permitted to go forward in its summation by arguing that it had in fact proved these crimes. On appeal, this unequal opportunity to present closing arguments was determined to violate the defendant's right to present a complete and meaningful defense pursuant to a fair trial. n89 Similarly, in Rhode Island, allowing the prosecution to make an opening statement while restricting the defense is also on its face unfair. This inequality completely ignores the concept of a fair trial and the notions of fundamental fairness guaranteed by due process.
n88 198 F.3d 734 (9th Cir. 2000).
n89 Id. at 739.
By precluding criminal defendants from presenting opening statements, Rhode Island has effectively narrowed the constitutional protections of criminal defendants who are without an affirmative defense. In support of its position, the Court cites a trial court's discretion to limit the scope of an opening statement. n90 The only plausible state interests to be achieved by exercising this discretion are to prevent argument and limit opening statements to evidence that counsel expects to produce at trial.
n90 Byrnes, 433 A.2d at 664; Bleau, 649 A.2d at 218.
It is uncontested that certain limitations exist on the presentation of opening [*27] statements. Rhode Island's practice extends trial judges' discretion on the scope of opening statements beyond permissible limitations and into the realm of unconstitutionality by conditioning a defendant's ability to make an opening statement on the defendant's presentation of evidence at trial. However, nowhere in the Constitution does it qualify the receipt of its protections.
It is generally accepted in trial practice that opening statements must not contain arguments, explanations of the importance of certain pieces of evidence, directives on how evidence should be weighed, comments on the credibility of witnesses, or comments on the law. n91 Although Rhode Island seeks to restrict defense counsel from arguing the merits of the defendant's case, counsel may still effectively deliver an opening statement that both complies with Rhode Island's asserted interests and promotes the free exercise of a defendant's constitutional right to present a complete and meaningful defense.
n91 Lubet, supra note 20, at 313.
In such instances, defense counsel may develop an opening statement that presents to the jury an explanation of the indictment charging the defendant, the prosecution's burden of proof beyond a reasonable doubt on each element of the crime(s) charged, the defendant's right not to testify, the duty of jurors to keep an open mind and uphold their oath, and the importance of jury service in our criminal justice system. n92 Such an opening statement would remain within the parameters desired by the Rhode Island Judiciary, as well as serve the defense's objective of responding to the prosecution's case in attempting to create a level of doubt in the minds of jurors.
n92 G. Nicholas Herman, ENTER OPENING STATEMENTS, 31 TRIAL 57 (1995).
Furthermore, if the court truly seeks to limit opening statements to the evidence counsel expects to introduce at trial, the defense should be permitted an opening statement to set forth the testimony that he or she expects to elicit on cross-examination. The fact that the defense intends to present its entire case through cross-examination, as opposed to presenting affirmative evidence in its case-in-chief, does not diminish the importance of the defense, nor its desire to apprise the jury of what the defense intends to prove at trial. n93
n93 Hershenow, 680 F.2d at 858.
Rather than restrict the scope of a defendant's opening statement within these permissible limits, Rhode Island [*29] instead prevents a certain class of criminal defendants from presenting opening statements. Although the presentation of an opening statement is not yet a constitutionally protected right, n94 such is an inadequate basis to defend Rhode Island's trial practice as constitutionally permissible. In Herring v. New York, n95 the United States Supreme Court afforded constitutional protection to closing statements. In its opinion, the Herring court set forth the purpose of closing statements as the opportunity at trial to sharpen and clarify the issues for the trier of fact, point out inferences that may be drawn from the evidence, indicate the weaknesses in the adversaries' position and to persuade the trier of fact. n96 Virtually, all of the functions that are served in summation are equally served in opening statements. However, since the two are separate components of a trial, each has its own independent significance in the trial process. To deny the accused the opportunity to present both is to deny the accused the chance to present a complete and meaningful defense.
n94 Salovitz, 701 F.2d at 21.
n95 422 U.S. 853 (1975).
n96 Id. at 862.
The Rhode Island practice explicitly bans criminal defendants who are without affirmative evidence to present at trial from making opening statements. These individuals represent a large class of defendants since one of the most common defenses in a criminal trial is to disprove or cast doubt on the prosecution's case. n97 Since 1981, it is unknown how many defendants have actually been affected by this practice. This practice is constitutionally impermissible and, therefore, must be abolished not only to even the playing field between the prosecution and defense, but also to restore to our criminal defendants their right to a fair trial with the presentation of a complete and meaningful defense.
n97 O'Connor, supra note 54, at 100.
2. Right to Effective Assistance of Counsel
The right to the assistance of counsel is guaranteed by the Sixth Amendment of the United States Constitution n98 This right is applicable to the states through the Fourteenth Amendment. n99 Rhode Island's Constitution also provides for the assistance of counsel. n100
n98 U.S. CONST. amend. VI.
n99 Gideon v. Wainwright, 372 U.S. 335, 399 (1963).
n100 R.I. CONST. RT art. I, § 10.
The rationale behind the right to the effective assistance of counsel is derived from the same fundamental fairness that guarantees defendants a fair trial and the opportunity to present a complete and [*30] meaningful defense. n101 A criminal defendant requires the assistance of counsel to adequately prepare his defense. n102 Effective assistance of counsel permits the accused to subject the prosecution's case to meaningful adversarial testing. n103 Also, the presence and assistance of counsel is the means by which other constitutional rights are secured. n104 For example, when exercising the Fifth Amendment right to remain silent, the defendant's right to be heard is exercised through counsel. Therefore, the right to counsel is fundamental to one's defense.
n101 A.L. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); United States v. Cronic, 466 U.S. 648, 655 (1984); United States v. Morrison, 449 U.S. 361, 364 (1984).
n102 Powell v. Alabama, 287 U.S. 45, 69 (1932).
n103 Cronic, 466 U.S. at 656.
n104 Id. at 653.
The Court in Strickland v. Washington n105 set forth two factors that a defendant must prove to succeed on a claim of ineffective assistance of counsel. First, defendants must prove that their counsel was deficient by showing counsel's performance to be unreasonable in light of the specific facts of the case. n106 Second, defendants must show that as a result of counsel's deficiency, their defense was prejudiced. n107 To do so, the defendant must prove by a totality of the circumstances that, but for counsel's error(s), the result of the criminal prosecution would have been different. n108 Ultimately, those who are accused must prove that counsel's error(s) deprived them of a fair trial, which inevitably led to their conviction. Failure to make the required showing of either of these requirements defeats a claim of ineffective assistance of counsel. n109
n105 466 U.S. 668 (1984).
n106 Id. at 691.
n107 Id. at 692.
n108 Id. at 695.
n109 Id. at 700.
The two-part test set forth by the Strickland court is specifically tailored to errors committed by counsels' own volition. However, the court also recognizes circumstances where an act of the State renders counsel's performance ineffective. In response, the court created a presumption of ineffectiveness where State interference results in the actual or constructive denial of the right to the effective assistance of counsel. n110 The application of this presumption requires a case-by-case analysis.
n110 Id. at 692.
The State violates a defendant's right to the effective assistance of counsel when it interferes with the ability of counsel to make independent decisions about how to conduct a defense. This violation does not require the two-part deficiency and prejudice analysis that is required when a defendant claims ineffectiveness based upon the defendant's lawyer's performance. Rather, such governmental [*31] interference is conclusively a Sixth Amendment violation.
For instance, in Geders v. United States, n111 at the conclusion of defense counsel's direct examination of his client, the court recessed for the night and scheduled the trial to resume the following morning commencing with the defendant's cross-examination. After the jury exited the courtroom, the trial judge imposed an order restricting defense counsel from having any contact with the client during the course of the overnight recess. The trial concluded the next day and the defendant was convicted of conspiracy and the illegal importation of a controlled substance.
n111 425 U.S. 80 (1976).
On appeal, the defendant contended that his inability to converse with counsel during a seventeen-hour overnight recess deprived him of his right to the effective assistance of counsel. The United States Supreme Court agreed, stating that "it is common practice during such recesses for an accused and counsel to discuss the events of the day's trial" and that such periods are "often times of intensive work, with tactical decisions to be made and strategies to be reviewed." n112 Therefore, the State's interference with the defendant's ability to communicate with his attorney during this critical time impinged upon his right to the effective assistance of counsel. n113
n112 Id. at 88.
n113 Id. at 91.
Criminal defendants, as a minimum component of their right to a fair trial, retain the opportunity to be heard. n114 When brought to trial, a criminal defendant is unlikely to be familiar with either trial practice or procedure. It is likely that the defendant will exercise his or her right to remain silent and refrain from taking the witness stand. Therefore, the only way that the defendant can effectively be heard is through representation by counsel. n115 Rhode Island fails to observe the right to counsel when it precludes the defense from making an opening statement.
n114 Chambers, 410 U.S. at 294; Washington, 388 U.S. at 18.
n115 Powell, 287 U.S. at 68-69.
During its opening statement, the prosecution will present to the jury its version of how the alleged crime occurred in a persuasive manner spelling out the defendant's guilt. If defense counsel it not allowed to respond, the jury's perception will be molded to that of the prosecutor. If our criminal justice system is truly premised upon seeking the truth, then without a doubt, the defense must have the chance to rebut the State's allegations and provide the jury with its theory of the case. If not, the only party heard is the State bringing the charges, not the accused defending against them. Rhode Island's practice silences the defense at the most critical stage of trial. This directly interferes with counsel's ability to defend the client and, therefore, violates the defendant's right to the effective assistance [*33] of counsel. n116
n116 Cronic, 466 U.S. at 659, n.25.
At trial, counsel must decide what type of defense is the best course of action to defend his or her client against the prosecution's case. In many criminal cases, the most effective defense is to hold the prosecution to its burden of proof and to rebut its case on cross-examination. n117 However, due to Rhode Island's practice, defense attorneys are forced to choose a defense that includes the presentation of affirmative evidence or waive the opportunity to make an opening statement. In cases where no other evidence is available, counsel may be forced to place the defendant on the stand. Failure to do so precludes the defense from making an opening statement, which will prevent it from rebutting the prosecution's case. Due to the potential effect of opening statements, this may have a detrimental impact on the jury's ultimate verdict. In cases where the defendant takes the stand to preserve the ability to present an opening statement, the defense may involuntarily incur tactical disadvantages such as impeachment and cross-examination. Such disadvantages would not exist but for Rhode Island's practice of restricting a defendant's ability to present an opening statement.
n117 Hampton, 269 A.2d at 443; O'Connor supra note 54, at 100.
Rhode Island's practice clearly interferes with both the defendant's right to be heard through counsel and counsel's ability to independently represent his or her client. As a result, this practice violates the Sixth Amendment guarantee to the effective assistance of counsel.
3. Right Against Self-Incrimination
The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself." n118 Also provided by the Rhode Island Constitution, n119 the right against self-incrimination guarantees criminal defendants the right to remain silent unless he or she chooses to speak. The unfettered right to remain silent is to be exercised upon a defendant's free will. n120 When doing so, according to the United States Supreme Court, he or she shall suffer no penalty. n121 However, a close examination of Rhode Island's restriction on opening statements reveals that a penalty is, in fact, imposed.
n118 U.S. CONST. amend. V.
n119 R.I. CONST. art. I §§ 10, 13.
n120 Brooks v. Tennessee, 406 U.S. 605, 609 (1992)(citing Malloy v. Hogan, 378 U.S. 1, 8 (1971)).
n121 Id.
Whether the defense has any evidence to present at trial is often not a choice available to the defendant. For [*34] instance, in a typical mugging case where a victim is robbed at knifepoint, a defendant who has been wrongfully accused and has no alibi witnesses will have no affirmative evidence to present on his or her behalf. Since the only feasible defense is misidentity, the sole evidence to be introduced in support thereof will be through cross-examination of the victim in order to cast reasonable doubt on the defendant's identification. In preparation, the defense could use its opening statement to present to the jury the theory of misidentification as well as the testimony the defense intends to elicit on cross-examination to prove this theory.
Since Rhode Island precludes these defendants from presenting opening statements, defense counsel must wait until the end of trial in the closing argument to present the defendant's version of the facts and explain to the jury the defendant's actions taken throughout trial. At the end, absent an opening statement by the defense at the beginning, the jury will have viewed the evidence through the prosecutor's eyes. At that point, it may be too late for defense counsel to undo the perception of the defendant created by the State.
To avoid this harsh result, the defendant may choose to take the stand to testify that he or she was not in the alleged location on the date and time of the robbery. This would avoid the harsh effect of Rhode Island's practice and afford the defense the opportunity present an opening statement. However, many risks arise when a criminal defendant takes the witness stand. n122 For example, if the defendant has a prior criminal history, the prosecution will seek to introduce it on cross-examination to impeach the defendant's credibility. Under such circumstances, there is the risk that the jury will convict the defendant based on the theory that if the defendant committed crimes in the past, then the defendant probably committed the crime for which the defendant is currently charged. Hence, criminal defendants and their counsel often decide that the defendant will refrain from taking the stand.
n122 Brooks, 406 U.S. at 609.
In Rhode Island, the consequence of choosing not to take the witness stand, for many defendants, is the restriction against making an opening statement. Due to the great significance of presenting an opening statement, these criminal defendants are forced to engage in the balancing act of choosing between their Fifth Amendment right against self incrimination and the importance of rebutting the prosecution's case and presenting the defense's theory in an opening statement.
In these unique circumstances, when a defendant exercises the right against self-incrimination by choosing not to take the witness stand, Rhode Island effectively punishes him by preventing him from making an opening statement. In Griffin v. California, n123 the prosecution, during its opening statement, commented on the defendant's failure to take the witness stand and testify on his own behalf. The U.S. Supreme Court held this action to be in direct violation of the Fifth Amendment protection against self-incrimination because it imposes a penalty upon the defendant for exercising one of his constitutional rights. n124 In essence, the prosecution was punishing the defendant for exercising his right to remain silent by implying that his silence amounted to his guilt. The practice of imposing a penalty "cuts down on this constitutional privilege by making its assertion costly" n125 and, therefore, violates the defendant's Fifth Amendment right against self-incrimination.
n123 380 U.S. 609 (1965).
n124 Id. at 614-15.
n125 Id. at 614.
Conversely, since a defendant without any affirmative evidence to present [*35] at trial may only retain the opportunity to present an opening statement by taking the witness stand, the defendant may be compelled to testify against himself or herself, which is also in violation of the Fifth Amendment. Faced with the detrimental effect of not directly and immediately responding to the prosecution's case in an opening statement, the defendant is forced to testify, thus waiving the right against self-incrimination.
In Brooks v. Tennessee, n126 the defendant was required either to testify as the first defense witness or waive the right to do so entirely. On appeal, the U.S. Supreme Court held that the decision of a defendant to take the witness stand is one of utmost importance that counsel can make only after meticulously balancing its advantages and disadvantages after the State presents its case. n127 The court's practice of forcing the defendant to take the stand on a take it or leave it basis effectively violates the Fifth Amendment right to remain silent. The implications of Rhode Island's trial practice are no different. Upon being faced with the detrimental effect of not responding to the prosecution's opening, and the likely impact that the defense's opening may have on the jury's ultimate verdict, the defendant is compelled to take the witness stand.
n126 406 U.S. 605 (Year).
n127 Id. at 607-08.
Whether or not a defendant chooses to testify, the defendant's Fifth Amendment right against self-incrimination remains in jeopardy. Rhode Island's practice of restricting criminal defendants from making an opening statement appears to create an unappealing and paradoxical choice: exercise the right to remain silent and forfeit the chance to present an opening statement or present an opening statement and forfeit the right against self-incrimination. Regardless of the choice, the inevitable result is that the Fifth Amendment will be violated either by penalty or by compelled testimony. On this basis, the Rhode Island practice is unconstitutional.
Furthermore, Section II establishes that Rhode Island's practice of conditioning a defendant's ability to make an opening statement on the presentation of affirmative evidence violates the due process right to present a complete and meaningful defense. For criminal defendants without any affirmative evidence to present at trial other than their own testimony, Rhode Island's practice presents another choice: give up the right to present a complete and meaningful defense or waive the Fifth Amendment protection against self-incrimination. The imposition of this choice alone is also unconstitutional.
In Simmons v. United States, n128 two defendants were charged with armed robbery. Following the robbery, Federal Bureau of Investigation (FBI) agents, without a warrant, searched a house where they found two suitcases that contained "a gun holster, a sack similar to the one used in the robbery, and several coin cards and bill wrappers from the bank which had been robbed." n129 Prior to trial, to establish standing at a suppression hearing, one of the defendants, Garett, testified that "although he could not identify the suitcase with certainty, it was similar to the one he had owned, and that he was the owner of the clothing found inside." n130 Garett's motion to suppress this evidence was denied. His suppression testimony was admitted as evidence against him at trial, and he was subsequently convicted.
n128 390 U.S. 377 (1968).
n129 Id. at 380.
n130 Id. at 381.
On appeal, Garett urged that his constitutional rights were violated when the testimony given at the suppression hearing was admitted against him at trial. The United States Supreme Court agreed. To succeed in a suppression hearing, the [*36] defendant must show a violation of the defendant's Fourth Amendment right against unreasonable searches and seizures absent a warrant. The defendant must testify to establish this standing by showing an expectation of privacy in the area impermissibly searched. Since such testimony may be admitted against the defendant at trial, defendants are presented with a choice, which is to give up a valid Fourth Amendment claim or to waive the Fifth Amendment right against self-incrimination. The Supreme Court found it "intolerable that one constitutional right should have to be surrendered in order to assert another." n131 On this basis, Garett's conviction was reversed.
n131 Id. at 394.
Rhode Island's practice clearly calls for the surrendering of one right for the exercise of another. Pursuant to the Court's holding in Simmons, this practice is unconstitutional.
IV. Conclusion
While this article concludes that Rhode Island's practice of restricting criminal defendants who are without evidence to present at trial from making opening statements is unconstitutional, the Court's rationale for doing so is not completely without merit. The Court clearly has an interest in preventing argument at the beginning of the trial. However, absent Rhode Island's trial practice, trial judges would still possess the requisite discretion to limit the scope of opening statements if they determine their content to consist of impermissible argument.
This article illustrates the devastating impact Rhode Island practice has on the constitutional protections guaranteed to criminal defendants. These individual rights unequivocally outweigh the judiciary's interest of preventing argument and limiting the scope of opening statements. Since there already exists a measure to further this State interest, the Court unnecessarily fears permitting defendants without affirmative evidence to present opening statements. Rather than infringe upon their constitutional rights by imposing an absolute restriction on opening statements, the Court may instead interrupt defense counsel at anytime during counsels' opening if such is necessary to regulate its content. This would not only promote the free exercise of defendant's constitutional rights, but also promote the interests asserted by the Court. On this basis, the Rhode Island practice should be abolished.
Alternatively, if abolishing this Rhode Island practice is not feasible, the lower courts, at a minimum, must narrowly construe the decisions that have created the practice by limiting them to their individual facts. A strict construction, although short of overruling a clearly unconstitutional practice, is the minimum required of the Rhode Island Judiciary to protect, for its criminal defendants, the fundamental rights guaranteed to them under the United States Constitution and the Rhode Island Constitution. The court's failure to protect these rights is the functional equivalent of the defendants having no rights at all. Therefore, defense attorneys, individually and collectively, must petition the courts to restore to their clients the constitutional protections that have been withheld by the Rhode Island Supreme Court for over two decades.
Defending Wrongful Cocaine Use Cases
- Practice Tips -
These tips apply to criminal charges referred for trial by court-martial or alternatively, administrative separation actions.
PRACTICE POINTERS: When your client is charged with wrongful use of cocaine, you should review the following list in preparation of your case.
1. Legality of Urine Sample Collection
2. Validity of Collection Procedures
3. Validity of Urine Specimen Testing Procedures
4. Obtain an Expert
5. Request Testing of Additional Metabolites
6. Request Negative Test Results Above “0” and Below “100 ng/ml” Cut-Off
7. Professional Literature
8. Leverage your client’s confrontation rights
1. Legality of Urine Sample Collection – begin your analysis by assessing the government’s basis (i.e. lawfulness) for collecting your client’s urine sample. If you suspect an unlawful collection, explore potential recourse via the 4th Amendment and/or Section III of Military Rules of Evidence (MRE) by filing motions to suppress in limine to exclude the sample at courts-martial setting, or moving to preclude its use before an ADMIN-SEP Board IAW AR 15-6, Para. 3-7c(7).
2. Validity of Collection Procedures – collection procedures emanate from two sources: AR 600-85, Appendix E, and SOP of your client’s Unit Prevention Leader (UPL). Carefully review the litigation packet for the unit’s compliance with both the AR and SOP. Though minor deviations in procedure do not generally affect admissibility of urine samples at trial, United States v. Pollard, 27 M.J. 376 (C.M.A. 1989), gross deviations may serve as the basis for successful motions in limine. United States v. Strozier, 31 M.J. 283 (C.M.A. 1990).
3. Validity of Urine Specimen Testing Procedures – DOD requires forensic laboratories to perform three tests before reporting a cocaine-positive urinalysis: an initial immunoassay screening for the presence of BZE (one of several cocaine metabolites); a second immunoassay test confirming BZE; and GCMS – a second and more reliable testing method – to confirm both the presence and quantity (100 ng/ml or more) of BZE in the urine specimen. Carefully review the litigation packet to ensure all three tests were performed. If there are any discrepancies or omissions in this three-step testing requirement, you may have a gross deviation in procedure sufficient to exclude the positive test results. Also, request Greystone Reports – quarterly independent quality control reports – from the forensic laboratory that tested your client’s urine specimen. These reports may reveal relevant deficiencies helpful to your case.
4. Obtain an Expert – retain a forensic toxicologist at all costs. This pertains to clients facing either court-martial or separation. Urinalysis is based in science and most lawyers are neither scientist nor scientifically or mathematically inclined. Experts can help you spot errors or omissions in testing procedures; research and acquire pertinent scientific literature; and assist with cross-examining government’s experts and preparing affirmative defenses.
5. Request Testing of Additional Metabolites – DOD requires that urinalyses are reported as positive for cocaine if Benzoylecgonine (BZE), a cocaine metabolite, is detected in a urine specimen in the quantity of 100 ng/ml or more. BZE will be present in a Soldier’s urine if either 1) cocaine was ingested (whether knowingly or innocently) or 2) cocaine was added to the urine sample after collection. In discovery, request, and if denied, move the Court for, testing of the following additional and arguably more reliable cocaine metabolites: Ecgonine Methyl Ester (EME); m-Hydroxybenzoylecgonine (m-OHBZE); p- Hydroxybenzoylecgonine (p-OHBZE); and n-Desmethyl Benzoylecgonine (norBZE). These metabolites are only produced when the human body metabolizes cocaine. They cannot be produced by introducing cocaine into or tampering with a urine specimen.
There are two caveats with requesting this additional metabolite testing: (1) courts are not required to order additional metabolite testing; rather, the decision to do so rests within the discretion of your Military Judge and/or Convening Authority, See United States v. Mosley, 42 M.J. 300 (C.M.R. 1995), see also United States v. Metcalf (A.F.C.M.R. 1992); and (2) additional metabolite testing can work against your client as much as it works for him.
6. Request Negative Test Results Above “0” and Below “100 ng/ml” Cut-Off. During discovery, request this information to determine if there exists evidence, regardless of drug type or metabolite quantity, that your client has used cocaine or other unlawful drugs in the past. Discovering this information is important particularly if your client intends to testify denying prior drug use. DOD forensic laboratories have information management systems that maintain urinalysis results, whether reported as negative or positive, for many years.
Though such negative test results were inadmissible in past cases, United States v. Johnston, 41 M.J. 13 (C.M.A. 1994), their admissibility at trial rests within the discretion of your military judge. If this information is admitted at trial or presented to a board to impeach your client’s credibility on the issue of prior drug use, it could be devastating to the outcome of the proceeding from a defense standpoint.
7. Professional Literature – work closely with your expert to research pertinent professional literature that may be helpful to your theory of defense. For instance, the Journal For Analytical Toxicology has several articles on innocent ingestion; smoke exposure studies; consumption of Latin American teas, which are legally sold in the United States, but made wholly or partially with coca leaves; and other studies that may explain how or why your client tested positive for cocaine for reasons other than knowing and wrongful drug use. Many journal articles have been added to the DCAP Portal under the “Recent Articles” section.
8. Leverage your client’s confrontation rights- In Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009), the Court held that lab certificates prepared by analysts are 1) hearsay and 2) inadmissible at trial over defense objection. Now, to satisfy the Confrontation Clause of the Sixth Amendment, the prosecution must call the analyst to testify at trial. This need at courts-martial may help you in negotiating and especially if there is an unknowing trial counsel who wants to rush into court. See also DCAP Sends 3-17 and 3-18.
The following page includes sample discovery request language.
SAMPLE DISCOVERY REQUEST NO. 1
All existing quarterly reports of Greystone Health Sciences for Fiscal Year (INSERT DATES). These requested reports may be procured through the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort Meade, Maryland. Although it is permissible for the FTDTL to release these reports to Defense Counsel, FTDTL will only release these reports to Defense Counsel via a request from the Office of the Staff Judge Advocate.
SAMPLE DISCOVERY REQUEST NO. 2
All information contained within the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort Meade, Lab Information Management System regarding “all” prior urinalysis test results for (ACCUSED RANK/NAME), to include, but not limited to negative results where the reported ng/ml result for BZE was less than 100.
SAMPLE DISCOVERY REQUEST NO. 3
Defense requests that (ACCUSED RANK/NAME) urine sample, which was collected on or about 15 July 2008, be tested for the presence of ecgonine methyl ester (EME). EME is one of two metabolites tested for with urinalysis to determine if a Soldier unlawfully used cocaine. Urinalysis for the second metabolite associated with cocaine use, benzoylecgonine (BZE), was performed on (ACCUSED RANK/NAME), urine sample by the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTC) of Fort Meade, Maryland, on or about(DATE OF TEST). This testing yielded positive results for the presence of BZE. Testing for the presence of EME, however, was not conducted. The Defense respectfully requests that the Government conduct additional urinalysis of (ACCUSED RANK/NAME), ample for the presence of EME. This request is made in accordance with United States v. Mack, 33 M.J. 251 (C.M.A. 1991).
SAMPLE DISCOVERY REQUEST NO. 4
Defense requests that (ACCUSED RANK/NAME) urine sample, which was collected on or about(COLLECTION DATE), be also tested for the presence of additional metabolites, which are indicative of cocaine ingestion. Specifically, the Defense requests additional urinalysis testing for the presence of m-hydroxybenzoylecgonine (m-OHBZE); p- hydroxybenzoylecgonine (m-OHBZE); and N-desmethyl benzoyl ecgonine (norBZE). The absence of these metabolites from his urine sample will support his defense against the pending charge of wrongful cocaine use. Defense respectfully requests that the Government engage the Armed Forces Institute of Pathology in Rockville, Maryland to conduct the above-requested testing.
Why Hire a Trial Attorney?
If you have been charged with a criminal offense, it is important that you hire a trial attorney, and not just someone who calls himself a criminal defense lawyer. The population of clients in need of criminal defense representation is often misinformed about lawyers' credentials. Many clients are attracted to lawyers who outwardly possess material items that society attributes to success: a Rolex watch, fancy Italian suits and shoes, a luxury automobile and lavish office space. Though these are universally recognized signs of financial success, they are in no way indicative of a sharp, talented attorney - the type you hope to have on your side. The financial success of a lawyer often has nothing to do with his or her skill and ability. Therefore, it is important to examine a lawyer's background and experience before making the often lifesaving decision to hire him.
It is without a doubt that if charged criminally you should retain a lawyer who handles criminal cases. A large percentage of lawyers claim to handle criminal matters. The reason for this is that many types of criminal cases begin and end quickly; involve very little paperwork; do not actually result in significant penalties (i.e. jail); and are lucrative. This is especially true with misdemeanor offenses. Many lawyers who handle criminal cases charge flat fees regardless of the number of times the lawyer must appear in court on a client's behalf or the amount of time spent actually preparing the case. Criminal cases are also typically unaffected by economic conditions and arguably when the economy is poor and unemployment is high, more crimes are committed resulting in a spike in criminal cases. For these reasons and more, many lawyers inexperienced in with handling criminal cases, let alone taking them to trial, advertise for criminal defense work. Potential clients should be wary of these profit driven businessmen with law licenses, and instead, retain an experienced criminal defense attorney who knows his way around a courtroom.
All criminal cases end in one of three possibilities: dismissal of the charge(s); you go to trial where a judge or jury determines guilt or innocence; or you enter into a plea trial agreement which provides that in, exchange for your admission to guilt, you receive an agreed upon sentence. More than 90% of criminal cases resolve themselves with pretrial agreements. This leaves the remaining 10% for dismissal or trial. Cases that resolve in pleas often open and close quickly with the defendant accepting responsibility for his or her actions. Many lawyers seek criminal cases for this very reason knowing full well that they can charge a flat fee of several thousand dollars and in many instances, negotiate a pretrial agreement on a defendant's behalf in a short period of time, and thereafter close the case after the defendant pleads guilty. This is precisely why you should avoid retaining attorneys who have no trial experience when criminal defense representation is required. Instead, you should hire a trial attorney to represent you during such difficult times.
Being charged with a crime is a sobering and often times a life-altering experience. Criminal charges have grave consequences which vary with each crime and may include jail; expensive fines and assessments; forfeiture of property; loss of license; and other restrictions on liberty such as court supervised rehabilitation and education programs; probation; home confinement; and sex offender registration requirements. There are also the intangible consequences of criminal charges such as the stigma and prejudice associated with having criminal convictions on your record and potential ramifications thereof such as being denied housing, financial assistance or employment opportunities. Because of these factors and more, you should not risk defending against any criminal charge without the direct assistance of a seasoned trial attorney.
A trial lawyer is a criminal defense lawyer with actual trial experience. The criminal justice process begins with an arrest and from that point forward moves towards trial. As stated above, many cases resolve themselves short of an actual trial either by dismissal or by plea. The decisions to proceed to trial versus enter into a pretrial agreement rests solely with the defendant. However, most, if not all, defendants look to their lawyers for recommendations as to how to proceed. Any lawyer, regardless of background, can advise a defendant to plead guilty and any such lawyer can then hold a client's hand throughout the guilty plea process. But a trial attorney is the type of attorney who actually has the experience and knowledge to truly evaluate the strength and weakness your case. Trial attorneys have battle tested evidence within the four walls of a courtroom by cross-examining witnesses, presenting oral arguments and filing motions to suppress evidence. They have also stood before juries and persuaded them of what types and amounts of evidence constitute guilt beyond a reasonable doubt, and what does not. This experience arms the trial lawyer with the real world knowledge required to truly evaluate the particular evidence that forms the government's case against you. Only after evaluating this evidence, through the eyes of an experienced litigator, can a client be truly advised on how to proceed with his case: whether to plead guilty or to exercise the right to a trial.
Finding a trial lawyer is not always easy. Given the lift on the ban against attorney advertising, many lawyers have websites, post bill boards along the highways, and even run commercial ads on television. Potential clients should not believe everything they hear or read. Instead, they should do their own homework to make sure the lawyer they seek to retain is truly a trial lawyer and has the skill and ability to represent the client’s best interests in court.
The population of trial attorneys is a dying breed. This is the result of several factors. First, as stated above, most cases resolve themselves short of trial so the opportunities for lawyers to acquire actual trial experience are few and far between. Second, economic factors have resulted in many formerly employed attorneys going into solo practice, without first accumulating any significant trial experience, after being laid off from downsizing law firms or shrinking public sector agencies such as the District Attorney or Public Defender's Office. The lack of trial attorneys in the market is also attributed to the number of lawyers, who once made their living in other then-thriving practice areas, attempting to now earn a living with criminal defense cases. One example is of the real estate attorney who once made handsome profits performing real estate closings when the economy thrived. Due to recent market turndowns, many of these lawyers are now holding themselves out as criminal defense lawyers as a last attempt to keep their law practices alive.
Many lawyers also self inhibit their ability to acquire trial experience. A lawyer who is primarily motivated by profits opposed to his client's best interest is not likely to acquire much trial experience. Since criminal cases are most often billed on a flat rate basis, a lawyer can increase his profit line and maximize his hourly wage the fewer times he must appear in court on a client's behalf and the fewer hours he must spend preparing the client's case. For example, a client who is charged with Driving under the Influence of Alcohol (DUI) may retain an attorney for a flat rate of $3500 for all criminal representation. The attorney earns more money per hour if, after spending two hours working on the case to include court appearances, his client pleads guilty to DUI opposed to electing a trial. There, the attorney must attend the same two court appearances as the more profitable attorney, plus spend several additional on trial preparation and perhaps one or two entire days in court (possible two) actually trying the case. Because of financial pressures or profit motives, some attorneys may be inclined to encourage their client’s to plead guilty opposed to proceeding to trial. Attorneys who engage in this behavior, for these motives, are committing unethical conduct that could cost them both their professional reputation and ability to practice law. Beware of these unscrupulous members of the bar.
Hiring a trial attorney does not mean your case will actually proceed to trial. Most often, pleading guilty is in the client’s best interest and will often be recommended by an experienced trial attorney. Clients who opt to plead guilty are typically rewarded with more lenient sentences than those who proceed to trial and are found guilty. The decisions to plead guilty versus exercise the right to trial is a risk analysis where the client and lawyer attempt to assess the chances of being found not guilty after a trial. It is important for this analysis to be performed so a defendant may make an informed decision about how to resolve his or her case. The analysis is both difficult and complex. Retaining a trial attorney means you will be represented by someone who is experienced at performing this analysis, and specifically, with evaluating the strengths, weaknesses, admissibility and persuasiveness of the state's evidence, and following that analysis, can provide you with an informed and educated recommendation on how to proceed. Retaining a trial attorney also means your case will be attacked at all phases of pretrial preparation through the filing of applicable motions to limit or reduce the State's evidence against you should you choose to proceed to trial. This aggressive pretrial work may also result in the dismissal of the charge(s) against you, and is certain to influence the terms of a pretrial agreement should you opt to have your trial attorney negotiate one on your behalf. Overall, hiring a trial attorney will accomplish the important goal of having your case reviewed, analyzed, challenged and presented by a lawyer experienced with trying criminal cases, not just facilitating guilty pleas. If this is your goal, as it should be, you must hire a trial lawyer now.
Attorney Calcagni is a trial lawyer with significant experience. He began his career prosecuting cases in the U.S. Army both as a JAG prosecutor and as a Special Assistant U.S. Attorney. He now uses the invaluable years of experience he acquired from prosecuting hundreds of criminal cases to help his clients in need of criminal defense representation. Attorney Calcagni is honest, hardworking and committed to seeking justice on his client's behalves in both state and federal courts. All clients receive a thorough case analysis and evaluation; and benefit from an aggressive pretrial motions practice, investigation, and trial strategy development. If you have been charged with a crime in either state or federal court and seek to employ the assistance of a trial attorney to represent you, please contact Attorney John L. Calcagni III now for a free consultation.
Grand Jury Subpoenas
Have you or someone you know received a subpoena to appear before a grand jury? If so, are you unsure of whether you need the services of a lawyer to represent you? Contact the Law Office of John L. Calcagni III, Inc. for an immediate consultation.
What is a grand jury? A grand jury is a group of citizens randomly selected from the community tasked with examining evidence to determine if there is probable cause or a factual basis to believe that a crime has been committed. If the grand jurors believe that probable cause exists, they return a “true bill” or vote to indict the person or persons against whom they believe there is a factual basis for the charged offenses. An indictment is issued that formally charges one with a felony offense. Felony crimes are the most serious types of crimes. Indictment by grand jury is the main way that the federal government charges felony offenses. In fact, the federal government must seek indictment by a grand jury to charge you with a felony unless you waive your right to be indicted by the grand jury. Many states, however, have a different practice: they may begin with an indictment by a grand jury or the state prosecutor may simply sign and file a formal charge of what is called an “information.” This grand jury process is used by both federal and state governments as a prerequisite in order to charge felonies, but is required by the federal government.
A grand jury differs from a trial jury in many ways. First, it differs in size. A typical trial jury consists of twelve members. Grand juries are usually larger and often double in size ranging from twelve to twenty-three members. Second, the amount of evidence needed for the government to get an indictment from grand jury is much less. At trial, the government must prove the defendant’s guilt to the charges offense(s) beyond a reasonable doubt. At a grand jury, however, the government need not prove anything, let alone beyond a reasonable doubt. Instead, all the government must do to be successful is to present just enough evidence to convince twelve grand jurors that there is a factual, reasonable belief based on facts presented by the prosecutor both that a crime was committed and that the target of the grand jury proceeding committed this crime. This is what is known as probable cause. A showing of probable cause requires significantly less evidence than proof beyond a reasonable doubt. Because of the wide variation in the amount of evidence needed for the prosecution to succeed before a grand jury as opposed to trial, it is much easier for the government to indict than it is to convict. Third, the votes required for the government to succeed is also less. At trial, the jurors must vote unanimously to convict the defendant of the crime(s) charges. Grand jurors, however, must only reach a majority vote in order to return a true bill required for an indictment. This low vote combined with the prosecution’s low burden of producing evidence of probable cause makes it very easy for the government to seek an indictment.
The most important difference between grand jury and trial proceedings is the nature in which these separate events are conducted. For instance, trials are open to the public and non-secret in nature. They are presided over by a judge with each side at trial, both prosecution and defense, represented by counsel. Grand jury proceedings are completely different and afford less protection to those being investigated for criminal prosecution. Grand jury proceedings are conducted in secrecy and are closed to the public. There is no judge present to preside or supervise what occurs inside. The only people within the four secretive walls of a grand jury proceeding are the prosecutor who convened the jury for purposes of seeking criminal indictments, and the actual jurors who listen to the evidence. Defense counsel is not allowed to be present. Moreover, people who are the target of grand jury investigation are not present, but when they are present, are not entitled to have the presence of a lawyer with them in the grand jury room. This may come as a surprise to those unfamiliar with the grand jury process. However, this grim reality underscores the importance of consulting with a lawyer immediately after receiving a subpoena to testify before a grand jury.
A grand jury proceeding is convened by a prosecutor seeking to indict someone he believes committed an offense. This belief is typically formed following a police investigation into a report of a crime. Thereafter, the prosecutor convenes the grand jury in order to present the evidence collected, which the prosecutor alleges supports probable cause to believe the defendant is guilty of the crime. This evidence may be in the form of documents, physical evidence or most commonly, witness testimony. Grand jury proceedings normally begin with the prosecutor presenting the testimony of the law enforcement agents who participated in the investigation, as well as the evidence they collected. Thereafter, the prosecutor may present other witness testimony or other evidence. However, before this may occur, the grand jury must issue a subpoena compelling the attendance of such witnesses or the production of evidence. If there are additional leads the prosecutor seeks to follow-up, for which the police were unsuccessful, he may ask the grand jury to issue subpoenas for witnesses who have yet to be interviewed, or the production of other evidence that it yet to be collected. The grand jury can also issue subpoenas on its own if the jurors decide they want to question a certain witness or request production of evidence they have reason to believe exists, but which either the police and/or prosecution have failed to produce. In reality, however, the prosecutor, who sits alone and in secrecy with the grand jury, is more knowledgeable about this investigation than the grand jurors, so he normally controls the process to which the jurors normally defer. The prosecutor’s requests are hardly, if ever, denied, and there is no defense attorney or supervising judge to control or challenge his actions. The control and influence that prosecutors have in these proceedings is enormous, as is their ability to secure indictments.
As stated above, witnesses are compelled to appear and testify before a grand jury upon issuance of a subpoena. A subpoena has the same force and effect as a court order and should never be ignored. Anyone can be subpoenaed to testify before a grand jury, including the suspect(s) of the crimes under investigation and any other related witness. Any person subpoenaed to a grand jury must appear and is not permitted to have an attorney present during testimony. This does not mean, however, that persons subpoenaed before a grand jury may not be represented by a lawyer. Anyone who receives a grand jury subpoena is entitled to retain a lawyer and is strongly encouraged to do so. Though a lawyer may not accompany his client into the grand jury room, the lawyer can serve many important functions before and during the grand jury process to protect his client’s rights, and most importantly, limit or prevent exposure to criminal liability.
Retaining an attorney after receiving a grand jury subpoena is very important for several reasons. First, despite what the police may say or promise when serving you with the subpoena, there is truly no way to know for sure if you are the intended target of the grand jury proceeding or just someone of interest who may have knowledge or information related to the underlying investigation. When approached by law enforcement with a subpoena and told that your testimony is required before a grand jury, the police may tell you that you are not in trouble or that the investigation is not directed at you or that your cooperation is needed. Be very careful when receiving this advice. Only the grand jury can decide who should be indicted, not the police or prosecutors. Though prosecutors have a great deal of control and discretion that may affect the outcome, the grand jurors have the final word regarding indictment. You truly may not be the target of the grand jury investigation. However, you may have intentionally or unknowingly engaged in some other conduct that could expose you to criminal liability if you appear before the grand jury and testify regarding your own conduct. Please note, however, that just because you have potential exposure to criminal liability does not mean that you will actually be charged or prosecuted with a crime. It means that there is a possibility you could be charged. In light of this sobering reality, retaining a lawyer early after receiving a grand jury subpoena and truthfully disclosing to him all knowledge and information you have related to the investigation will enable him to analyze your potential criminal liability exposure and take appropriate actions to protect your rights.
When appearing before a grand jury, you will be placed under oath and asked to testify in response to questions posed by the prosecutor. The grand jurors may also ask you questions. Your responses to all questions are under oath. Should you testify falsely, you may be charged with perjury or providing a false statement while under oath. Therefore, you must tell the truth. However, because anything you say can be used against you as evidence in a criminal prosecution, testifying truthfully may subject you to criminal liability. Under these circumstances, you may be entitled to invoke your constitutional protection against self-incrimination. The 5th Amendment to the U.S. Constitution provides that no person may be compelled to testify against himself. This legal right is most commonly referred to the right to remain silent. If subpoenaed to testify before a grand jury and if asked under oath a question to which the answer may incriminate you or subject you to criminal liability, you may claim your 5th Amendment right to avoid testifying. In fact, it is absolutely necessary for you to do so in order to first, comply with the oath to testify truthfully, and two, protect yourself from self-incrimination and having your testimony used against you as evidence in a criminal prosecution.
It is not easy to know when to claim your right against self-incrimination. Though you may not have directly committed the offense(s) being investigated by the grand jury, you may have engaged in other conduct, whether related or otherwise, which could potentially result in your own criminal prosecution. Since your words can be used against you, you must know when to invoke your privilege to avoid giving the prosecutor and grand jury information, including that which they may have not otherwise known, to criminally charge you. Having the assistance of an attorney to assist you with analyzing these complex issues and preparing to provide your grand jury testimony is the best way to ensure both your compliance with the grand jury subpoena, and protection against criminal prosecution.
If you invoke your 5th Amendment privilege, one of two things is likely to happen. First, your testimony may simply conclude. Second, and alternatively, the prosecutor may grant you what is called immunity and you may be required to continue with testifying. Immunity is essentially a promise by the government that if you testify truthfully before the grand jury and answer all questions posed to you, your answers will not be used against you. If granted immunity, you can no longer rest upon your 5th Amendment privilege to avoid testifying. Instead, you must testify truthfully. With a grant of immunity, you may no longer need to worry about self-incrimination. If you know that you will likely need to claim your right to remain silent during a grand jury proceeding, your lawyer should communicate this fact early to the prosecutor. This will likely facilitate you receiving a grant of immunity in advance of the proceeding, should the prosecutor still seek your testimony. This will avoid a situation where you have to actually appear before the grand jury twice: first to invoke your 5th Amendment privilege, and second to testify truthfully after receiving a grant of immunity.
Immunity issues can be very complex, even for lawyers. A lawyer is needed to assist you with analyzing these issues. For instance, there are multiple types of immunity and each type provides different protections against criminal prosecution. Second, often your testimony may expose you to criminal liability in more than one jurisdiction, such in one state and one federal district, or in two or more different states. The prosecutor who seeks your grand jury testimony is likely to only have authority to grant you immunity against prosecution in his particular jurisdiction. In some circumstances, this grant of immunity will be limited and insufficient to completely protect you against prosecution in other jurisdictions. If so, you may still need to invoke your 5th Amendment privilege to protect yourself from criminal liability in those other jurisdictions. Having a lawyer to assist you with these issues early on is the best approach for protecting yourself from possible criminal exposure and securing the right forms of protection, or immunity, so that you may testify truthfully.
If you receive a grand jury subpoena, be safe by retaining an attorney immediately. Consult with your attorney regarding your knowledge of facts related to the grand jury investigation. Become knowledgeable about your right to remain silent or against self-incrimination. Know how and when to claim this important right. Also, learn what types of immunity are available to you. Having the assistance of counsel will help you in this regard, and may enable you to avoid a felony indictment or other serious criminal prosecution that could alter your life forever.
Providence, RI
1 Custom House Street
Suite 300
Providence, RI 02903
New Bedford, MA
15 Hamilton Street
New Bedford, MA 02740
Elmhurst, NY
40-06 Warren Street
Elmhurst, NY 11373
Satellite Beach, FL
297 Highway A1A
Unit 317
Satellite Beach, FL 32937
