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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 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 19 - Motions Practice In General, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 19 - Motions Practice In General, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The following sections deal solely with non-evidentiary motions hearings, describing the procedures followed in such hearings and suggesting approaches to take in arguing motions. Techniques for conducting evidentiary hearings on motions to suppress are covered in Chapter 24; and much of the tactical advice offered in that chapter applies to other evidentiary motions hearings as well. See, e.g., §§ 24.2, 24.4-24.6 infra; and see § 18.1 concluding paragraph supra.

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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 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 31 - Interlocutory Review Of Pretrial Rulings By Means Of Prerogative Writs, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 31 - Interlocutory Review Of Pretrial Rulings By Means Of Prerogative Writs, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Yet in virtually every State there are excellent doctrinal bases to support interlocutory review. Appellate courts are generally given by statute the power to issue the prerogative writs of mandamus and prohibition. Traditionally, the writs lie to compel (in the case of mandamus) or to prohibit (in the case of prohibition) action by an inferior court that is conducting any proceeding in a manner rendered unlawful by lack of jurisdiction or gross abuse of discretion. Many pretrial rulings in criminal cases would seem susceptible of being brought within the framework of these concepts.

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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 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 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 38 - Motion For Acquittal, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 38 - Motion For Acquittal, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

At the close of the prosecution’s case, it is routine for defense counsel to move for a judgment of acquittal. (Terminology differs among jurisdictions. The motion is sometimes called a “motion to dismiss,” a “prima facie motion,” a “motion for a directed verdict” or a “demurrer to the evidence.”) But cf. Evans v. Michigan, 568 U.S. 313, 329 (2013) (dictum) (“Nothing obligates a jurisdiction to afford its trial courts the power to grant a midtrial acquittal, and at least two States disallow the practice. See Nev. Rev. Stat. § 175.381(1) (2011); State v. Parfait, 96,1814 (La.App. 1 Cir. 05/09/97), 693 …

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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 32 - Election Or Waiver Of Jury Trial; Pretrial Matters Relating To The Jury, Anthony G. Amsterdam, Randy A. Hertz Jan 2026

Chapter 32 - Election Or Waiver Of Jury Trial; Pretrial Matters Relating To The Jury, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The present chapter deals with aspects of the right to jury trial that require counsel’s attention before trial begins. Chapter 33 discusses matters relating to the selection of jurors at the outset of a trial. Implications of the Sixth Amendment right to jury trial for later stages of the case are taken up in the chapters dealing with those stages. For example, the principle that the Sixth Amendment, “in conjunction with the Due Process Clause, requires that each element of a crime be proved to a jury beyond a reasonable doubt” (Hurst v. Florida, 577 U.S. 92, 97 (2016)) limits …

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