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Chapter 1 - Introduction And Overview, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 1 - Introduction And Overview, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This Trial Manual is a how-to-do-it guidebook for handling criminal cases from beginning to end. It provides a compact guide through the stages of an ordinary criminal case, from arrest and investigation to appeal. Its focus is upon the key points at which defense counsel must make decisions and take actions. Options and factors to be considered in each decision, and steps that can be taken to assert a client’s rights and protect the client’s interests at each stage, are laid out.

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Table Of Contents, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Table Of Contents, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

TABLE OF CONTENTS
PART ONE: INTRODUCTION AND OVERVIEW (Chapters 1-2)
PART TWO: INITIAL STAGES OF THE CASE THROUGH ARRAIGNMENT (Chapters 3-16)
PART THREE: PROCEEDINGS BETWEEN ARRAIGNMENT AND TRIAL (Chapters 17-31)
PART FOUR: TRIAL (Chapters 32-46)
PART FIVE: POST-TRIAL (Chapters 47-49)

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Chapter 6 - Interviewing The Client, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 6 - Interviewing The Client, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The first interview with a criminal client is probably the most important exchange that counsel will have with the client. It largely shapes the client’s judgment of the lawyer. Any initial impressions counsel makes may be indelible. At the least, this interview will strongly affect all future dealings between the two. The lawyer’s primary objective in the initial interview is to establish an attorney-client relationship grounded on mutual confidence, trust, and respect.

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Chapter 6'S Interview Checklist § 6.15, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 6'S Interview Checklist § 6.15, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The following checklist covers most of what the lawyer will have to learn from a client in order to develop an effective defense at all stages of a criminal case from first contact through trial. It models a thorough interviewing process; more than a single interview will ordinarily be needed to gather all of the information it includes. When the charge is relatively minor, less extensive fact-gathering may be adequate. But counsel will do well to assume at the outset that all of the subjects flagged by this checklist need to be on the agenda; decisions to curtail coverage should …

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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 4'S Bail Questionnaire § 4.5, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 4'S Bail Questionnaire § 4.5, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The following questionnaire is designed principally for counsel’s use in obtaining from a client information pertinent to the amount of bail that should be set. Counsel can, however, easily convert the questionnaire into a form that can be notarized and submitted to a magistrate or judge in support of an application for bail in a manageable amount or for reduction of bail or for release on nominal bail or on recognizance, as is appropriate. Of course, caution must be observed not to use the form in this fashion if a client’s answers may supply incriminating information or investigative leads that …

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Chapter 10 - Summary Of Things To Do Before First Court Appearance, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 10 - Summary Of Things To Do Before First Court Appearance, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Contains "Checklist of Things to Do for an Arrested Client Between the Time of Arrest and the Client’s First Court Appearance" and "A Note on the Coroner’s Inquest and Similar Institutions."

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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 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 8 - Dealings With The Police And Prosecutor, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 8 - Dealings With The Police And Prosecutor, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Counsel should usually establish contact with the investigating officers as early as possible in the course of a case. Thereafter, s/he should speak to them whenever the needs of the client dictate. Similarly, counsel should establish contact with the prosecuting attorney as soon as one is assigned to the case and should communicate with him or her periodically thereafter. The purposes of these contacts are (a) to learn as much as possible about the charges against the defendant (those already lodged and others that may later be lodged) and potential prosecution evidence; about the temperament of the prosecutor and of …

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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 23 - Motions For Severance Or For Consolidation Of Counts Or Defendants, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 23 - Motions For Severance Or For Consolidation Of Counts Or Defendants, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Section 23.2 describes the strategic variables that counsel should consider in deciding whether to challenge joinder of counts. Sections 23.3 and 23.4 then examine the motions that counsel can file to obtain dismissal or a severance on grounds of misjoinder and to obtain a severance on the grounds that the joinder, although technically valid, is prejudicial to the defendant. Section 23.5 discusses motions for consolidation. The considerations that might lead defense counsel to favor or oppose a joint trial are listed in § 23.7 infra. As the discussion there indicates, it will usually be in the defendant’s interest to seek …

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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 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 29 - Defense Trial Preparation, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 29 - Defense Trial Preparation, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Defense trial preparation culminates in the selection of the witnesses and evidence that will be presented at the trial (and, where applicable, at any pretrial evidentiary motions hearings such as suppression hearings (see Chapters 24-27 supra) and hearings on motions in limine (see § 17.5.3 supra)). Counsel must be wide-ranging in the search for sources of proof but highly selective in what s/he actually puts on at pretrial hearings and at trial. It is vital that s/he have an integrated theory of defense and that the evidence be tightly organized so that the defense theory will come across clearly in …

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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 35 - Opening Statements, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 35 - Opening Statements, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Immediately after the attorneys announce that they are ready to begin trial and before the first witness is called, the prosecuting and defense attorneys (in that order) are permitted to make opening statements, sometimes called opening arguments or opening speeches.

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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 34 - Trial: General Characteristics, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 34 - Trial: General Characteristics, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Ordinarily a criminal trial cannot be held in absentia. See Drope v. Missouri, 420 U.S. 162, 182 (1975). The defendant “has a right to be present at all important stages of trial” (McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) (dictum)). In most jurisdictions the right derives from several sources. It is often conferred by statute or rule of court (see, e.g., Crosby v. United States, 506 U.S. 255 (1993)); it is held to be protected by the common state constitutional guarantees of due process and of confrontation; and it is protected by the Due Process Clause of the Fourteenth …

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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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