The Balanced Approach


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Double Jeopardy, Snitches, and Lawyer misconduct in Criminal Cases

Here are the last of my criminal law tips this week.  It is important to think about criminal law in a professional responsibility context as well.  It's a subject with easy cross-overs.

Double jeopardy:

1. You can still be retried after a hung jury, after a defendant’s successful appeal based on weight, but not if reversal based on sufficiency

2. If you have already been convicted of a crime, you can’t be charged with the same crime again

3. It applies in a charging document – you cannot be charged with the same crime twice in the same complaint/indictment – Apply the Blockburger test.

4. You can be tried for the same conduct in state and in federal court, or two different states

6th amendment right to counsel:

1. It attaches after a defendant has been charged, it is offense specific.  Once charged and awaiting trial, the cops cannot come in any shape or form (through snitches) and ELICIT incriminating statements from the defendant about the crime charged.

2. If the cops put an agent/informant/snitch on the defendant and that agent acts merely as a “listening post” and hears the defendant make incriminating statements about the crime charged, that agent/informant/snitch can testify about those statements.  BUT, if that agent/informant/snitch asked questions about the crime or prodded the defendant for information, it becomes a 6th amendment violation.  Exclude it. If the prosecutor told the snitch to purposefully prod and elicit on the crime charged, discuss professional misconduct.

3. If the cops or an agent/informant/snitch badger or prod or elicit statements from the defendant about another crime (an uncharged act) that is totally A-Ok.  The 6th amendment is offense specific.  Caveat: but if it’s during a custodial, interrogation by the police then be sure to spot and IRAC the 5th amendment right to counsel and silence. 

Professional responsibility in criminal cases

1. When prosecutors do naughty things (usually after the 6th amendment right has attached) check to see if you have any prosecutorial misconduct issues lurking.  Common PR issues in a criminal context are:

- withholding exculpatory evidence

- pretrial publicity that could infect the jury pool

- intentionally using peremptory challenges to exclude jurors based on race

2. Defense attorneys are often put in the position of choosing between their duty of candor to the court and their duty of confidentiality and loyalty to the client.  Several rules guide defense attorneys on how to ethically walk that balance.


Amy Parekh