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Chapter 7 - Case Planning, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 7 - Case Planning, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This chapter is designed to assist counsel in forming a plan of action and implementing it. Every case is unique in its facts and in the series of tasks that must be performed to prepare it for trial. But some generalizations are possible regarding techniques and considerations that can usefully guide counsel’s strategic planning. Section 7.2 describes a process for developing a theory of the case and explains the ways in which counsel can use the defense theory to guide the vital fact-gathering process (§ 7.2.2 infra), the selection and drafting of motions (§ 7.2.3 infra), and the actions that …

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Chapter 3 - The Lawyer's Entrance Into The Case – First Steps, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 3 - The Lawyer's Entrance Into The Case – First Steps, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Defense counsel may have occasion to enter a criminal case at almost any of the stages described in Chapter 2. In the early stages, at least, the crucial first steps to be taken are essentially the same. They are, in essence: (1) to make contact with the client, obtain the client’s authorization to represent him or her, warn the client against speaking with the police or others, and obtain information that counsel can use to seek the client’s release; (2) to speak to the investigating officer, find out whatever counsel can about the charges and the availability of release on …

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Chapter 5 - State-Paid Assistance For The Defense: Obtaining State Funding For Counsel’S Time And For Defense Services, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 5 - State-Paid Assistance For The Defense: Obtaining State Funding For Counsel’S Time And For Defense Services, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As explained in § 2.3.4.2 supra, indigent defendants have a Sixth Amendment right to court-appointed counsel in all felony cases (Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938)) and on any charges of misdemeanors or petty offenses for which a term of imprisonment is going to be imposed as a result of conviction, “‘even for a brief period’” (Alabama v. Shelton, 535 U.S. 654, 657 (2002)), including cases in which the court imposes “a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’” (id. at 658) in the event …

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Chapter 9 - Defense Investigation, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 9 - Defense Investigation, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Investigation is counsel’s principal means for obtaining and vetting the information s/he needs. Although there are other fact-gathering tools – formal discovery proceedings (see Chapter 18); motions practice (see Chapter 19); plea-bargaining discussions (see Chapter 15); informal interchanges with a prosecutor (see § 7.2.2 supra) – they tend to be less reliable and comprehensive than independent defense spadework: meticulously searching the streets, paper and electronic files and records, and the internet. One key component of defense investigation, the interview with the client, is discussed in Chapter 6. The following aspects of investigation are discussed in the present chapter: locating and …

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Chapter 11 - Preliminary Hearing, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 11 - Preliminary Hearing, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The first judicial appearance of the defendant is called the preliminary hearing (or, in some States, the commitment hearing or the examining trial). This is the proceeding described in §§ 2.3.3-2.3.5, 2.4.2 supra. A magistrate (or a justice of the peace, municipal court judge, or other member of the minor judiciary) usually presides, although in most jurisdictions judges of courts of record also have statutory authority to sit as committing magistrates (see § 11.6.2 infra). Arrested defendants are brought before the magistrate for a preliminary hearing shortly after arrest. See §§ 11.1.1, 11.1.2, 11.2 infra. Summoned defendants are required by …

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Chapter 13 - Defense Procedures After The Filing Of The Charging Paper And Before Arraignment, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 13 - Defense Procedures After The Filing Of The Charging Paper And Before Arraignment, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Contains "Checklist of the Steps To Take During the Period Between the Filing of the Charging Paper and Arraignment", with further elaboration in subsequent sections.

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Chapter 12 - Defensive Procedures Between Bind-Over And The Filing Of The Charging Paper, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 12 - Defensive Procedures Between Bind-Over And The Filing Of The Charging Paper, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Most States, by constitution or statute, require the prosecution of some or all serious crimes by indictment. The Fifth Amendment to the federal Constitution similarly requires that prosecutions for any “capital, or otherwise infamous crime [in the federal courts be by] . . . indictment.” The requirement is conceived principally as a protection to the defendant, and s/he may waive it. See, e.g., People v. Myers, 32 N.Y.3d 18, 20, 109 N.E.3d 555, 556, 84 N.Y.S.3d 406, 407 (2018) (upholding the validity of a defendant’s waiver of the right to indictment “[b]ecause Steven Myers and the court supervising his waiver …

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Chapter 14 - Arraignment And Defensive Pleas, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 14 - Arraignment And Defensive Pleas, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Arraignment is the stage of proceedings when a misdemeanor or felony defendant ordinarily appears for the first time in the court that has jurisdiction to try the case. The defendant has been notified of the arraignment date as indicated in § 13.2 supra.

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Chapter 15 - Guilty Pleas: Preparing For And Conducting Plea Negotiations; Counseling The Client About A Plea Offer, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 15 - Guilty Pleas: Preparing For And Conducting Plea Negotiations; Counseling The Client About A Plea Offer, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This chapter examines the processes by which counsel prepares for and conducts plea negotiations with the prosecutor and advises the client about a bargained plea. The chapter leads off with a discussion (in § 15.2) of the relative roles of counsel and client in deciding whether the client should plead guilty rather contesting a criminal charge. Part B (§§ 15.3-15.7) discusses the benefits and costs to a defendant of resolving a criminal charge by pleading guilty. It then reviews the factors that counsel should consider in developing an advantageous plea bargain to propose to the prosecutor or in assessing a …

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Chapter 21 - Removing The Case From The Criminal Court’S Docket: Motions For Diversion, Acd, Or Stetting; Transfer To Juvenile Court; Deferred Adjudication, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 21 - Removing The Case From The Criminal Court’S Docket: Motions For Diversion, Acd, Or Stetting; Transfer To Juvenile Court; Deferred Adjudication, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As noted in §§ 2.3.6 and 8.2.2 supra, many localities have more or less formal procedures for “diverting” criminal cases out of the system. Such diversion procedures go by different names in different jurisdictions (including “adjournment in contemplation of dismissal” (“ACD”) and “stetting”)

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Chapter 22 - Change Of Venue Or For Disqualification Of The Judge, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 22 - Change Of Venue Or For Disqualification Of The Judge, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The general principles governing initial venue in criminal cases are sketched in § 20.5 supra. As that section indicates, a charging paper filed in the wrong venue is usually subject to a motion to quash or to dismiss. In some jurisdictions, however, the defendant’s remedy may be merely a motion for transfer to the court of proper venue. Statutes, court rules, local practice, canons of judicial ethics, and opinions rendered by a jurisdiction’s professional-ethics committee or agency provide varying grounds and procedures for objecting to a particular judge’s presiding at trial or on pretrial matters.

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Chapter 24 - Suppression Hearings, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 24 - Suppression Hearings, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Suppression hearings may be used by the defense for several different purposes. To put a hearing to the most effective use, defense counsel needs to make a preliminary determination of which purposes s/he should be pursuing in this particular case. Often, a clear-cut choice between one purpose and another will be necessary, because the purposes or important means for achieving them are inconsistent. This is ordinarily not a choice that can be put off until the time of the evidentiary hearing: Both the content of the suppression motion and the nature of counsel’s pre-hearing preparation will vary considerably depending upon …

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Chapter 17 - Defense Procedures And Considerations Between Arraignment And Trial, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 17 - Defense Procedures And Considerations Between Arraignment And Trial, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Contains sections on: "Checklist of Matters for Counsel to Consider Between Arraignment and Trial", "Selecting and Drafting Pretrial Motions: Strategic and Practical Considerations" and "Resisting Prosecution Attempts to Freeze a Defendant’s Assets".

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Chapter 16 - Representing Clients Who Are Mentally Ill Or Intellectually Disabled, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 16 - Representing Clients Who Are Mentally Ill Or Intellectually Disabled, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

There are, however, some clients who are not competent to make decisions affecting their own welfare; and counsel may need to take special measures in these cases. If counsel reasonably believes that mental illness or an intellectual disability has so severely “diminish[ed]” the client’s “capacity to make adequately considered decisions in connection with the representation . . . [that] a normal client-lawyer relationship with the client” cannot be maintained, and if counsel furthermore “reasonably believes” that the client “is at risk of substantial physical, financial or other harm unless action is taken and [that the client] cannot adequately act in …

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Chapter 27 - Motions To Suppress Identification Testimony, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 27 - Motions To Suppress Identification Testimony, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This chapter examines the various doctrines governing suppression or exclusion of identification testimony. Procedural requirements governing suppression motions and strategic considerations in drafting the motions are discussed in §§ 17.3-17.11. Techniques for conducting a suppression hearing are discussed in Chapter 24.

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Chapter 28 - Defense Motions To Advance Or For A Continuance; Motions To Dismiss For Want Of Prosecution; Speedy Trial Motions, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 28 - Defense Motions To Advance Or For A Continuance; Motions To Dismiss For Want Of Prosecution; Speedy Trial Motions, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Statutes or court rules establish criminal terms of court, at which the principal criminal business is done. Local practice may or may not allow the handling of particular phases of criminal cases out of term, such as the hearing and disposition of pretrial motions or the entry of a guilty plea and reference of the defendant for presentence investigation. Magistrates and justices of the peace ordinarily sit continually throughout the year; and in the courts of record, matters that are handled by ancillary procedures such as habeas corpus are never confined to the criminal terms.

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Chapter 30 - Retaining And Working With Expert Consultants And Potential Expert Witnesses, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 30 - Retaining And Working With Expert Consultants And Potential Expert Witnesses, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

There is a host of types of experts that may be useful in a criminal case. For some examples, see § 5.2 seventh paragraph supra.

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Chapter 18 - Pretrial Discovery; The Pretrial Conference, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 18 - Pretrial Discovery; The Pretrial Conference, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As a matter of practice, criminal discovery involves two processes or phases: informal and formal discovery. Most prosecutors are willing to hand over to the defense upon request certain categories of materials which it is clear that a court would order the prosecutor to divulge if the defense made a motion to discover them. Informal discovery devices (such as the discovery letter (see § 18.5 infra) and the discovery conference (see § 18.6 infra)) provide a quick route to obtaining this material. When the informal devices fail because the prosecutor refuses voluntarily to divulge information requested by the defense, counsel …

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Chapter 26 - Motions To Suppress Confessions, Admissions, And Other Statements Of The Defendant, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 26 - Motions To Suppress Confessions, Admissions, And Other Statements Of The Defendant, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The doctrines described in this chapter supply grounds for suppressing not only confessions but any statement by the defendant – “whether inculpatory or exculpatory – that the prosecution may seek to introduce at trial” (Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980) (emphasis in original); see also Miranda v. Arizona, 384 U.S. 436, 476-77 (1966)).

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Chapter 33 - Selecting The Jury At Trial: The Voir Dire, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 33 - Selecting The Jury At Trial: The Voir Dire, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The procedures described in §§ 32.3-32.3.4 supra carried the process of selecting a trial jury up to the point at which a panel of jurors is ushered into the courtroom on the day of trial. The final step in the process, by which the actual trial jurors (and alternates) are selected from the panel, is known as the voir dire examination. It is the stage at which a great number of criminal cases are won or lost. For a discussion of voir dire practices that are useful in selecting jurors who are most likely to give defendants a fair trial, …

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Chapter 20 - Motions To Quash Or Dismiss The Charging Paper, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 20 - Motions To Quash Or Dismiss The Charging Paper, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

There are numerous grounds for moving to quash or dismiss a charging paper or one or more of its counts. The chapter discusses a number of them.

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Chapter 37 - Handling Prosecution Witnesses, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 37 - Handling Prosecution Witnesses, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The right to a “searching and wide-ranging cross-examination” is widely recognized by the courts (State v. Thaden, 210 Neb. 622, 627, 316 N.W.2d 317, 321 (1982)).

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Chapter 36 - Evidentiary Issues That Are Likely To Arise At Trial, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 36 - Evidentiary Issues That Are Likely To Arise At Trial, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

General rules of evidence applicable in civil cases are also controlling in criminal cases. This chapter’s discussion of evidentiary matters will be limited to a few of the most important problems specific to criminal trials.

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Chapter 40 - Objections To Evidence; Anticipatory Objections; Motions In Limine Or To Preclude Prosecutorial Evidence Or Practices; Motions To Strike; Motions For Mistrial; Proffers; Rulings On Evidentiary Questions, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 40 - Objections To Evidence; Anticipatory Objections; Motions In Limine Or To Preclude Prosecutorial Evidence Or Practices; Motions To Strike; Motions For Mistrial; Proffers; Rulings On Evidentiary Questions, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

If the prosecutor attempts to introduce objectionable evidence or engages in an objectionable practice, the threshold question always is whether the potential benefits of objecting outweigh whatever strategic interests there may be in foregoing an objection. The considerations that go into this cost-benefit analysis are discussed in section 40.2 infra. When counsel concludes that an objection should be made, s/he will need to make it in a manner that is clear and complete enough to preserve a claim of error for appeal if the judge overrules the objection and the defendant is ultimately convicted. Section 40.3 infra canvasses the technical …

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Chapter 44 - The Court's Charge To The Jury, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 44 - The Court's Charge To The Jury, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The court’s instructions to the jury must be delivered orally in open court, in the presence of counsel and the defendant. E.g., United States v. Becerra, 939 F.3d 995, 1001 (9th Cir. 2019) (“the historic practice of oral jury instruction remains central to the fairness of jury trials”); State v. Norris, 10 Kan. App. 2d 397, 401, 699 P.2d 585, 588 (1985) (“oral instruction is vital to the fulfillment of the court’s duty to instruct the jury”); United States v. Noble, 155 F.2d 315, 318 (D.C. Cir. 1949); State v. Lindsey, 245 N.J. Super. 466, 470, 586 A.2d 269, 271 …

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Chapter 42 - Instructions To The Jury; Defense Requests To Charge, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 42 - Instructions To The Jury; Defense Requests To Charge, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

In many jurisdictions it is customary or obligatory, prior to the lawyers’ closing arguments, for the judge to confer with the prosecutor and defense counsel to determine what the jury will be charged (or to “settle the instructions,” as it is often called). See, e.g., United States v. Melhuish, 6 F.4th 380, 392 (2d Cir. 2021) (dictum) (“[w]e have ‘repeatedly held that defense counsel should be afforded the opportunity to review a proposed jury instruction’”). This may be done as a matter of routine, or counsel may have to request a conference if s/he wants one.

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Chapter 43 - Closing Arguments, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 43 - Closing Arguments, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As a general matter, the closing arguments of the attorneys recapitulate the theories of each party and attempt to justify the inferences and conclusions that each feels should be drawn from the evidence. In almost all jurisdictions, the prosecutor argues first and defense counsel second. In some jurisdictions the prosecutor is always permitted to rebut and thereby have the last word; in other jurisdictions the prosecutor is permitted to rebut only if the defense has presented evidence. Some judges will permit surrebuttal argument by the defense when the prosecutor has obviously sandbagged and reserved most of his or her substantive …

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Chapter 45 - The Jury's Deliberations And Verdict, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 45 - The Jury's Deliberations And Verdict, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

(A) In some jurisdictions, once the jury’s deliberations have begun, the jurors are not permitted to separate until a verdict has been reached. If a verdict cannot be reached before a normal mealtime or day’s end, deliberations may be stopped with the permission of the court, and the jury will be fed or housed under the supervision of court attendants. Although the jury is kept together during these recesses, it is not permitted to deliberate outside the jury room.

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Chapter 47 - Postverdict Proceedings, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 47 - Postverdict Proceedings, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Once the verdict is recorded, the court may be permitted to impose sentence immediately, or to proceed immediately to a more or less formal sentencing hearing, or to defer sentencing with or without ordering a presentence investigation.

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Chapter 41 - Renewed Motion For Acquittal, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 41 - Renewed Motion For Acquittal, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

At the close of all the evidence, the defendant moves for a judgment of acquittal (or a “directed verdict of acquittal,” as local practice may style it). This is a renewal of the motion previously made at the close of the prosecution’s case and raises the same legal issue. See Chapter 38. However, the issue is now decided on the basis of the evidence presented by both parties. See, e.g., United States v. Lawrence, 471 F.3d 135, 139-43 (D.C. Cir. 2006) (stating the general rule that “[i]f the defendant moves for a judgment of acquittal at the close of all …

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