The ninth edition of the Trial Manual for the Defense of Criminal Cases (“Trial Manual 9”) by Anthony G. Amsterdam and Randy Hertz has just been published. A free .pdf copy is available to attorneys in public defender and community defender offices, to attorneys in legal services organizations, and to other attorneys whose practice is predominantly pro bono. To request a copy, activate this link: https://www.ali.org/trial-manual/
Although this is primarily a manual for defense lawyers in criminal trials, it deals exhaustively with all of the procedural issues that are the stuff of appeals and the grist for post-conviction claims of constitutional violations and jurisdictional defects as well as those that underlie IAC and Brady claims cognizable in state post-conviction and federal habeas proceedings. A summary of its coverage is set out below.
If anybody wants a hard copy version, the authors are once again negotiating with Amazon to keep the price down to a reasonable figure. Last year, Amazon’s price for the 4-volume TM8 was $ 58.24 total, plus postage; this year the manual is up to five volumes so the price will be slightly higher but probably not much. Precise details will become available on the Amazon website when print production is completed. (Caveat: Don’t be surprised if the first box you receive contains only two or three of the five volumes you’ve ordered. The rest will arrive in a day or two.)
SUMMARY:
TRIAL MANUAL 9 FOR THE DEFENSE OF CRIMINAL CASES
by Anthony G. Amsterdam and Randy Hertz
The Trial Manual 9 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; handling arraignments; plea bargaining; obtaining and resisting discovery; challenging indictments and informations; and seeking diversion or transfer to juvenile court. 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, suppression of statements of the defendant, and suppression of 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, including working with expert witnesses where appropriate.
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. The downloadable versions of these documents are available at www.ali.org/trial-manual.