Newsletters

• Production Immunity

  Although the concept of production immunity is relatively new, in 1886 the United States Supreme Court held that the compulsory production of private papers containing incriminating information violated the Fifth Amendment to the United States Constitution. The Court has since found that as long as the subpoenaed papers were prepared voluntarily, the documents themselves cannot be said to contain compelled testimonial evidence. The documents therefore may not always be withheld on Fifth Amendment grounds.

  The act of producing documents in response to a subpoena constitutes a communicative act on its own. The act of production shows that:

  • The documents exist.
  • The documents are believed to be authentic.
  • The documents are in the possession of the witness required to produce them.

  Generally, the witness is not permitted to refuse to produce documents if the state or federal government is able to demonstrate with reasonable particularity that it knows of the existence and location of subpoenaed documents.

  The Fifth Amendment prohibits an inquisition on the assembly, sorting and production of voluminous documents in response to a broad subpoena request. The subpoena request for producing documents should be precise and specific. It should identify as closely as possible the documents sought to be produced. The subpoena should not ask for every document in a witness’s or defendant’s possession.

  Production of Corporate Documents

  With respect to the production of corporate documents the above principles are inapplicable. Corporations are not protected by the Fifth Amendment privilege against self incrimination. Corporations are not entitled to assert the Fifth Amendment privilege with respect to the contents of subpoenaed records. The custodian of corporate records is not entitled to refuse to produce those records on the ground that their contents may incriminate him or her on a personal level because they are not his or her records. Moreover, the custodian of the records may not claim that the actual act of producing the records violated his or her right against self incrimination.

• Witnesses and Confidential or Classified Information

  Prosecutions involving issues of war, national security or espionage may involve witness testimony and classified information. Classified information is defined as information that should not be disclosed to the public because of the sensitivity of the information or the source from which the information was derived. Prosecutors and defense attorneys should avoid divulging classified information during the witness’s testimony. Under the Classified Information Procedures Act, the attorneys are to avoid any unnecessary or inadvertent disclosure of classified information.

  Questioning of Witness and Role of the Judge

  If the witness is asked a question during a defendant’s trial that would require him or her to divulge classified information, the prosecution may object to the question or inquiry that would have required the witness to disclose classified information. The trial court judge has a duty to ensure that classified information is not divulged during the defendant’s trial and to ensure that all safeguards possible will be taken to protect the classified information.

  The prosecution should not provide the witness with extensive written instructions prior to his or her testimony about how to answer questions that would reveal classified information because such written information may be discoverable under the Jencks Act.

  Use of Exhibits Containing Classified Information

  If either the prosecution or defense attorney seeks to introduce exhibits containing classified information for the witness to identify during the defendant’s trial, the classified information should be extradited or redacted from the document or evidence. The information should not be visible to the witness or to the jury. If the classified information is not properly redacted from the evidence sought to be admitted, the trial court judge should prohibit the admission or usage of such evidence.

  Both sides must be cautious in not only their questioning of a witness that is privy to classified information but also with respect to the type of evidence that either side seeks to admit during the defendant’s trial. The issue of the disclosure of confidential information should be dealt with during the pretrial phase of the trial.

• Stipulations of Expected Testimony, Trial Procedure, and Rules of Evidence in a Criminal Trial

  Stipulations to Expected Witness Testimony and Documents

  The parties in a criminal trial may stipulate or agree to the expected testimony of a witness that will not be able to attend or testify at trial. The parties may also stipulate to the contents of a document that will not be produced at trial. When the parties stipulate to expected witness testimony or to the contents of a document they are not stipulating to the admissibility or factual accuracy of the testimony or document. The non-requesting party may raise an independent evidentiary objection to the contents of the testimony or document. Further, the non-requesting party may introduce rebuttal evidence. The trial judge is required to instruct a jury on the factual element to which the stipulation relates to because factual issues still may remain.

  Stipulations to Trial Procedure and Rules

  The parties may not only agree upon facts, expected testimony, and documents but may also agree to certain procedure and rules. Often times a prosecutor or defense attorney will stipulate to the authenticity of certain items. Such items that the prosecutor or defense attorney may stipulate to include:

  • Authenticity of evidence, especially documentary.
  • Experts’ qualifications.
  • Accuracy of documents or other evidence.
  • Admissibility of evidence.

  By stipulating to certain items, the non-requesting party waives objecting to any foundational issues, which may have been raised prior to the admission of such items.

  The trial courts generally favor stipulations to testimony, evidence, or rules. The reason why many trial courts favor stipulations is for judicial economy. It may save a tremendous amount of time and taxpayer money to permit stipulations to certain items or procedural issues. However, it is within the trial court’s discretion to reject any stipulation. Sometimes trial courts do not accept all stipulations that waive foundational requirements.

  Enforceability of Stipulations

  The trial judge should not reject a proposed stipulation on the basis that the trial judge would have found the evidence to be admissible without the stipulation. Once the trial judge accepts the stipulation, the stipulation is enforced against both parties. In a number of jurisdictions, if the stipulation is accepted during the trial phase it is also deemed accepted during any subsequent phases such as sentencing or appeal. If a manifest injustice would result, the trial judge or subsequent judge may relieve both parties from enforcement of the stipulation. Either party may file a motion to vacate the stipulation. Common instances in which the trial judge may chose not to enforce the stipulation between the parties include:

  • Mistake of fact.
  • Mistake of law.
  • Fraud.
  • Misrepresentation.
• Prosecutions for State Insurance Fraud

  Prosecutions for State Insurance Fraud

  Most states have statutes governing the issue of insurance fraud. One may be charged with insurance fraud if:

  • The individual prepared or presented a false or fraudulent written statement.
  • The individual aided, solicited, or conspired in presenting a fraudulent written statement.
  • The individual had the specific intent to defraud the insurer.

  Generally, the court requires proof that the claim of loss was presented with the intent to defraud. Insurance fraud is a specific intent offense meaning that the individual seeking to defraud the insurer must have had the specific intent to defraud.

  Elements Elaborated

  Presentation of a false claim

  The prosecutor may prove that the defendant presented a false claim by showing evidence that the instrument presented to the insurer constituted a false statement in furtherance of a scheme to defraud the insurer. Examples of types of evidence that may be presented during the defendant’s trial include:

  • Applications.
  • Claim forms.
  • False proof of loss claim.

  Specific Intent To Defraud

  The prosecutor must prove that the defendant had the specific intent to defraud the insurer. Specific intent requires that the defendant either had knowledge of the falsity of his claim or that he made the claim with reckless disregard for the truth. The prosecutor may show the defendant’s intent to defraud the insurer by way of circumstantial evidence.

  Insurance Contract Between the Defendant and Insurer

  It is not required that the prosecutor show that a valid insurance contract existed between the insurer and the defendant. The prosecutor is only required to show that the defendant believed that the policy was valid and in force.

  Prosecution of Insurance Fraud with Other Offenses

  The defendant may be tried with insurance fraud as well as with other offenses. Often times the defendant may be involved with an underlying criminal act and attempt to recover for the damages sustained as a result of that act. An example is when the defendant commits arson and then attempts to collect under his property insurance policy for the damages suffered, the defendant may be charged with both fraud and arson.

• Rights Of Crime Victims

  Criminal Law & Procedure: Sentencing: Restitution

  Being a victim of a crime is a frightening experience. Until fairly recently, crime victims had no rights and did not have access to any federal, state, or local services to help them through the experience. In most states, there are now many services and resources that are available to crime victims.

  Most states guarantee certain rights for crime victims. These rights include the right to be notified of all court proceedings related to the offense, the right to be protected from an offender, the right to make a statement at the offender’s sentencing, the right to restitution from the offender, and the right to information about the conviction, sentencing, imprisonment, and release of the offender. These rights also include the right to be notified of the aforementioned rights and the right to enforce these rights.

  Crimes victims may obtain information about their rights from victim and witness assistance programs, which programs are usually located in city, county, state, and federal prosecutors’ offices.

  There are several private nonprofit and charitable organizations that provide services to crime victims. These organizations generally provide two types of services. These services include compensation and assistance. The compensation programs reimburse crime victims for expenses that are related to the crimes. The crimes that are covered are normally violent crimes, such as homicide, rape, drunk driving, domestic violence, and sexual abuse or neglect of children. The expenses include medical costs, mental health counseling, funeral and burial costs, and lost wages or lost support.

  The Office for Victims of Crime is an agency of the United States Department of Justice, which administers the Crime Victims Fund. The Crime Victims Fund provides financial support to crime victims. The Crime Victims Fund receives money from criminal fines, forfeited bail bonds, and penalties that are collected by the United States Attorneys’ Offices, federal courts, and the Federal Bureau of Prisons. The money is collected from offenders who are convicted of federal crimes.

  Services that are also available to crime victims include assistance programs, such as counseling, hotlines, and support groups.