2019 Criminal Evidence Update–CLE Course Part 1

NOTE THAT THE ACCREDITATION OF THIS COURSE ENDS ON JULY 15, 2020

THE COURSE WILL NO LONGER BE AVAILABLE AFTER JULY 15, 2020

2019 CRIMINAL EVIDENCE UPDATE—PART 1 of 3

Course #CRM0328 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for the Period July 2, 2019, through July 15, 2020

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 4.0 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

The course, in three parts, organizes selected decisions released between January 1, 2017 and December 31, 2018 which address evidentiary issues in the context of Criminal Law. The NYS CLE Board’s approval process takes time, hence the December 31, 2018 cut-off. Four decisions summarized in the written materials were reversed by the Court of Appeals between January and July 2019. The reversals are indicated in red (in the written materials) with links to the Court of Appeals decisions. There are no references to the reversed decisions in the podcast. The reversals are:  People v Giuca, 2019 NY Slip Op 04642, CtApp 6-11-19 (Brady Material—the First Department decision is summarized at page 22 in the written materials);  People v Hill, 2019 NY Slip Op 03405, CtApp 5-2-19 (De Bour—the First Department decision is summarized at page 53 in the written materials);  People v Brown, 2019 NY Slip Op 03529, CtApp 5-7-19 (Justification Defense—the First Department decision is summarized at page 95 in the written materials); and  People v Smith, 2019 NY Slip Op 04447, CtApp 6-6-19 (Missing Witness Jury Instruction—the Fourth Department decision is summarized at page 130 of the written materials). To keep up to date, use the “Update Service” (in the menu at the top of the website pages) where the “Criminal Law” decision-summaries posted on the New York Appellate Digest website are organized in monthly “Update Pamphlets.” The Tables of Contents in these monthly “Update Pamphlets” facilitate a quick review of the “Criminal Law” issues, including evidentiary issues, addressed by our appellate courts since this CLE course was created.

As you listen to the course, you will hear four verification codes. After finishing all three parts of the course, print and fill out the attached “Attorney Affirmation,” including the four verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 4-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“2019 Criminal Evidence Update”—319 pages), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

2019 Criminal Evidence Updated—Written Materials

Attorney Affirmation 2019 Criminal Evidence Update

Evaluation Survey 2019 Criminal Evidence Update

Topics Covered in Part 1 (page references are to the written materials; the podcast does not address every case in the written materials ) 

[Links to the Other Two Parts of this Course: Part 2, Part 3]

SECTION ONE 5

EVIDENTIARY ISSUES, OTHER THAN “HEARSAY” AND “SEARCHES,” WHICH ARE NOT LINKED TO SPECIFIC OFFENSES (“HEARSAY” AND “SEARCHES” ARE COVERED SEPARATELY IN SECTIONS THREE AND FOUR) 5

ACCOMPLICES 5
ACQUITTAL 11
ACTUAL INNOCENCE 12
ALIBI 14
ALFORD PLEA—ACTUAL GUILT 15
ANNOTATIONS (ON TRIAL EXHIBITS) 16
AUTHENTICATION (PHOTOS) 18
BRADY MATERIAL 20
CELL PHONES 24
CELL SITE LOCATION 25
CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME 27
COMPETENCY 28
CONFESSIONS 29
CONSPIRACY 33
CONSTRUCTIVE POSSESSION 35
CUSTODY 39
CROSS-RACIAL JURY INSTRUCTION 40
DE BOUR STREET STOP/TRAFFIC STOP CRITERIA 43
DEPRAVED INDIFFERENCE 65
DNA 69
FRYE HEARINGS 76
GANGS 79
IDENTIFICATION 82
INNOCENT POSSESSION 93
JUSTIFICATION DEFENSE 95
LAW OF THE CASE (EVIDENTIARY RULING BY TRIAL JUDGE) 103
LEGALLY SUFFICIENT EVIDENCE (TRIAL) 104
LEGALLY SUFFICIENT EVIDENCE (GRAND JURY) 112
LESSER INCLUDED OFFENSES 116
MISTRIAL 123
MIRANDA 124
MISSING WITNESS 130
MOLINEUX 131
REVERSE MOLINEUX 137
MOTIVE TO LIE 138
PAROLEES (WARRANTLESS SEARCH) 139
PAYTON 140
POLICE MISCONDUCT 141