The American Law Institute is in the final stages of publishing the seventh edition of ANTHONY G. AMSTERDAM & RANDY HERTZ, TRIAL MANUAL 7 FOR THE DEFENSE OF CRIMINAL CASES. Lawyers in public defender offices, nonprofit legal services offices, and pro bono criminal practice can obtain a free copy of the .pdf version of the manual for downloading from the ALI website by filling out the form at https://www.ali.org/trial-manual/
Although the book is a trial manual, not a postconviction manual, it does cover all of the criminal-procedure issues that arise in pretrial and trial proceedings – from Faretta admonitions through inflammatory prosecutorial closing argument, jury misconduct, and posttrial motions – which are the grist of substantive postconviction guilt-phase claims. It is an invaluable resource for attorneys specializing in capital postconviction litigation. Note, however, that the manual’s treatment of the penalty phase of capital cases – and of capital cases as such – is cursory. This is meant to convey the message that capital defense is a specialty and should be conducted by learned counsel or under the supervision of learned counsel. A hard copy of the manual will be available in the near future for those who do not qualify to receive the free copy.
TRIAL MANUAL 7 FOR THE DEFENSE OF CRIMINAL CASES
by Anthony G. Amsterdam and Randy Hertz
The Trial Manual 7 for the Defense of Criminal Cases is a guidebook for criminal defense lawyers at the trial level. It covers the information a defense attorney has to know, and the strategic factors s/he should consider, at each of the stages of the criminal trial process. It is organized for easy access by practitioners who need ideas and information quickly in order to jump-start their work at any given stage.
The Manual begins with an overview of criminal procedure and then focuses on the issues a defense attorney is likely to confront, and the steps s/he will need to take, at the early stages of a criminal case, including: the first steps to be taken to locate, contact and protect a client who has been arrested or summoned or who fears s/he is wanted for arrest; arguing for bail or other forms of pretrial release; conducting the initial client interview; developing a theory of the case; dealing with police and prosecutors; planning and overseeing the defense investigation; conducting the preliminary hearing; grand jury practice; challenging indictments and informations; obtaining discovery; filing motions; seeking diversion; and plea bargaining. It also addresses the additional considerations that may arise when representing a client who is mentally ill or intellectually disabled.
The Manual next conducts an in-depth examination of the pretrial motions that defense attorneys commonly litigate in criminal cases. This includes lengthy chapters on suppression of tangible evidence, statements of the defendant, and identification testimony. These chapters provide detailed information about federal constitutional doctrines and a large number of state constitutional rulings that confer heightened protections. The chapters also provide suggestions for framing suppression arguments and conducting suppression hearings effectively.
The Manual then discusses the immediate run-up to trial: issues relating to the timing of pretrial and trial proceedings; interlocutory review of pretrial rulings; and the concrete steps that counsel will need to take to prepare for trial.
Moving on to the trial stage, the Manual discusses the decision to elect or waive jury trial; jury selection procedures and challenges before and at trial; general characteristics of trials; opening statements; evidentiary issues and objections at the trial of guilt or innocence; techniques and tactics for handling prosecution and defense witnesses; trial motions; closing arguments; requests for jury instructions and objections to the court’s instructions; and jury deliberations. Issues, procedures, and strategies unique to bench trials are discussed in tandem with the parallel aspects of jury-trial practice.
Finally, the Manual discusses posttrial motions and sentencing and concludes with a short summary of appellate and postconviction procedures and a précis of the first steps to be taken in connection with them.
The structure and presentation of material are designed to facilitate the conversion of text into defense motions and other types of briefing. Three of the documents in the text are available for direct downloading from the ALI website: section 2.5’s flow-chart of procedures in summary, misdemeanor, and felony cases; section 4.5’s questionnaire for obtaining information pertinent to bail from the client; and section 6.15’s checklist for interviewing the client. The bail questionnaire and the interview list are in Word format that can be edited and thus customized to an individual user’s practice and/or turned into a form for use in taking notes in real time during client interviews.