LAW 898A LSN CRIMINAL LITIGATION. Spring Professor Susan Leff 1

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1 LAW 898A LSN CRIMINAL LITIGATION Spring 2009 Professor Susan Leff 1 CLASS MEETINGS: Tuesdays, 6:30 p.m. to 9:10 p.m., Check class room locations on 2 nd and 3 rd floor by Elevator #3 during the first week of class. OFFICE HOURS: By appointment. COURSE OBJECTIVE: Students will learn to analyze, investigate and litigate a winning strategy in a simulated criminal case. METHODS OF INSTRUCTION: Students will engage in a semester-long simulation by acting as prosecutor or defense attorney and litigating criminal charges based upon a crime arising from a staged event occurring early in the semester. Guest speakers may be invited to join student lawyers for class meetings to demonstrate special topics related to criminal litigation. REQUIRED TEXTBOOK: Criminal Litigation in Action ISBN (CLIA), by Laura Berend and Jean Montoya (NITA, 2002) REFERENCE TEXTBOOK: (Available in hard copy at the GGU Bookstore): CEB California Criminal Law: Procedure & Practice (2008 Ed.), the most widely used authority in California. ONLINE VERSION: The electronic version of 2008 California Criminal Law Procedure and Practice Book is not a downloadable document; it s an on-screen version read-only document. Please follow these instructions for obtaining the FREE electronic version of the California Criminal Law Procedure and Practice book (published by CEB). Online access starts January 1, 2009 ends May 15, On or after January 1, go to: 2. Enter access code Rutberg08 (case-sensitive) 3. The next page will have the book s title on the far left in the upper navigation area. Click the next button at the top of page to view the book online or you can expand the + symbol in the left margin where you see Criminal Law to view the chapters. OTHER REFERENCE MATERIALS: This class has a Westlaw TWEN website, accessible through your Westlaw password. Real life articles and readings will be posted on TWEN website or handed out in class, including articles, transcripts, and other materials. ATTENDANCE: Your presence is REQUIRED at all class meetings & court hearings. More than one unexcused absence will negatively affect your grade. 1 ( is preferred form of communication) or by telephone, of 7

2 GRADING: To receive a passing grade, you must attend all classes and perform all courtroom exercises by competently, ethically and effectively advocating through your written motions and oral advocacy each stage of the case you are litigating. Your competence regarding each stage of the case will be evaluated on both your written work and oral advocacy. In addition, you will keep and maintain a Trial Binder with all trial assignments, which you will submit to me for grading after our final trials. RESPONSIBILITIES: Students must complete all course assignments on time and: 1. Provide actor/witnesses: Each student will work with an assigned partner. Each team of two must secure the assistance of two (or three) willing actors to play the part of a witness in the simulated crimes. All of these actors must be available on the dates noted in the class schedule in the evening to participate in our simulation in various ways, including, but not limited to, being interviewed by investigators and/or lawyers and then testifying at preliminary hearings, and eventually, at trial. Note: YOU are responsible for ensuring your witness participation for this course. 2. Investigate, prepare and litigate the case: Student-lawyers for both sides will timely, ethically and thoroughly conduct factual investigation, research legal issues and prepare for all stages of litigation, including the preliminary hearing and trial. 3. Student lawyers will dress and behave appropriately for court: Student lawyers and their guests will behave appropriately and will follow all rules and regulations at all times at the Hall of Justice. Student lawyers will dress in trial court attire for all hearings at the Hall of Justice. Students may wear business casual clothing for class meetings held on campus. 4. Assignments: Please use TWEN (which has a time-stamp) to turn in assignments for the professor. Please bring TWO extra hard copies of assignments with you to class for judges. You may make other arrangements to exchange assignments with opposing counsel. 5. Conduct Preliminary Hearings: February 24, 2009 at the San Francisco Hall of Justice at 850 Bryant Street. The prosecution teams must each call at least two witnesses to testify at the preliminary hearing. Defendants must be present and the defense must be prepared to cross-examine prosecution witnesses, although the defense will probably not call any defense witnesses at this hearing. 6. Conduct a complete Jury Trial: April 28, 2009, 6:00-9:30 p.m. at S. F. Hall of Justice. 1 1/13 Introductions: Overview, Arrest and Detention For today s class you should have read: CLIA, Chapter 1 (Answer questions, pp. 7 and 27) Reference Reading: CEB Chapters 3 (Arrest & Bench Warrants) & 18 (Professional Responsibility) TWEN readings for class 1 NONE Class 1 continues to next page 2 of 7

3 CLIA, Chapters 2 & 7 (review questions pp. 73 & 271) Reference: CEB Chapters 7 (Pleadings) & 11 (Discovery) TWEN readings for class 2 For NEXT class, please have contact information for your witnesses and be sure to tell them about their participation in our class on the dates of the crime, the arraignment, the preliminary hearing, the hearing on the motion and the trial. 2 1/20 Charging, Case Theory & Discovery By the end of tonight s class, we will have divided the class into prosecutors and defense lawyers. Before you leave class tonight, please: (1) exchange contact information with both your partner and your opposing counsel; (2) provide both your partner and your opposing counsel with your witness contact information; and (3) sign up your teams for a time for next week s crime. After tonight s class, but before next week, each team should also provide contact information for both yourselves AND your witnesses to me and the Teaching Assistant (for our use only in case of emergency.) CLIA Chapter 3 (Review questions, p. 107) Reference: CEB Chapters 1 (The Client Interview), 4 (Release Procedures), 5 (Right to Counsel: The Attorney-Client Relationship) TWEN readings for class 3 For NEXT class, please prepare your witnesses and defendants to take part in the crime, which will take place next week at specified times. 3 1/27 Class Does Not Meet: Crimes Scheduled On Campus! Prosecutors: Police Reports will be available on 1/28/09 at 9 a.m. in the Faculty Center Complaints and discovery are due 1/30/09 at 9 a.m. in the Faculty Center Defense Attorneys: Bail/OR motions due 2/2/08 at noon in the Faculty Center CLIA, Chapter 4 (review bail questions on p. 129 and related materials through page 166) Reference: CEB Chapters 6 (Arraignment), and 19 (Lineups & Identification) TWEN readings for class 4 NONE, but witness contact information is due for all witnesses and must be exchanged before the end of tonight s class. Please be sure to provide Prof. Leff & the T.A. with all witness contact information before the end of class! ALL Witness, times to be announced; Witnesses will be provided with instructions before playing their roles 3 of 7

4 4 2/3 Arraignment and Pre-Trial Release Both prosecutors & defense attorneys should be prepared to conduct arraignments and argue their respective positions at hearings on the Bail/OR motions Detectives and Defendants CLIA, Chapters 5 & 6 (Review questions pp. 205) Reference: CEB Chapters 9 (Deferred Entry of Judgment, Diversion, and Preplea Probation Report), 22 (Preliminary Hearings) and 12 (Public Records) TWEN readings for class 5 For NEXT class, bring in a rough outline of blocks of questions or topics you intend to ask a witness at the preliminary hearing. Next class, you may be asked to demonstrate a mini-examination made up of one of these blocks or topics (about questions per block. ) Remember to keep your questions short, sharp and focused! 5 2/10 Preliminary Hearing Preparation: Discovery and Factual Investigation; Direct & Cross-Examination Both prosecutors & defense attorneys should be prepared to demonstrate in class a series of questions from one block or topic in their respective examination of prosecution witnesses at the preliminary hearing and to explain their strategies for asking that series of questions CLIA, Chapter 8 Reference Reading: CEB Chapters 49 (Advising Witnesses), 23 (Motions To Set Aside Information & Indictment) & 30 (Confessions and Admissions) TWEN readings for class 6 * 2/17 NO CLASS Make-up day for Monday, 2/16, Presidents Day Monday classes meet on this date All lawyers should use this week to catch up on readings & prepare to conduct their preliminary hearings. 6 2/24 Preliminary Hearings at Hall of Justice Both prosecutors & defense attorneys should be prepared to conduct their respective examination of prosecution witnesses at the preliminary hearing Complaining Witness, Defendant, officer; courtrooms TBA Class 6 continues to next page 4 of 7

5 CLIA: Chapters 6 & 7, Review questions p. 271 Reference: CEB Chapters 8 (Grand Jury), 24 (Selected Pretrial Motions) & 26 (Discharge and Dismissal) Review any sample motions or transcripts on TWEN TWEN readings for class 7 7 3/3 Preliminary Hearing Debriefing/ Pre-trial Litigation Strategies & Motions, part 1 Topics will include Grand Jury Proceedings, Pitchess Motions & Formal Discovery Motions Prosecutors: Informations are due at noon on 3/13 in the Faculty Center; bring original to turn in plus 2 copies Reference: CEB Chapters 20 (Search & Seizure Motions) & 29 (Preparation & Presentation of Case and Argument) Review any sample motions or transcripts provided on TWEN TWEN readings for class 8 8 3/10 Arraignments and Pre-trial Litigation Strategies & Motions, part 2 Topics will include Suppression Motions All lawyers should use this week to catch up on all reading assignments, read relevant statutes and caselaw on the charges and on motions and to prepare for conducting motion hearings after spring break CLIA: Chap. 8 & 12 Reference: CEB Chapter 32 (Jury Instructions) 34 (Prejudgment Motions), 48 (Representing the Noncitizen Criminal Defendant) and read ahead in order to prepare for next week TWEN readings for class 9 * 3/17 SPRING BREAK! (Relax, Enjoy and Rest up!) (Defendant will be arraigned in absencia per Penal Code (Section 977) 9 3/24 Jury Instructions & In Limine Motions Defense Attorneys: You must file at least one defense motion, which is due at noon on 4/20 in the Faculty Center CLIA, Chapters 10 & 11 Reference: CEB Chapters 10 (Pleas and Case Settlement), 36 (Misdemeanor Sentencing), 37 (Felony Sentencing), Probation & Parole 5 of 7

6 10 3/31 Plea Negotiations, Including Sentencing Considerations & Immigrations Consequences Prosecutors: Oppositions to Defense Motion are due at noon on 4/1 in the Faculty Center All attorneys should be prepared to engage in pretrial negotiations with opposing counsel in class and discuss with opposing counsel any potential stipulations for trial Review CLIA: Chap. 8 Reference: CEB Chapters 27 (Trial by Court or Jury), 31 (Selected Trial Motions), and 35 (Prior Convictions; Other Bad Acts) 11 4/7 Hearings on Pretrial Motions Defense Attorneys: Any Replies to Prosecution Opposition motions are due at noon on 4/17 in the Faculty Center Witnesses as Needed All attorneys should be prepared to argue their respective positions at the hearing on the pretrial motion in class All attorneys should continue discussing proposed trial stipulations with opposing counsel to turn in next week CLIA, Chapters 9 & 12; Review questions on pp Reference: CEB Chapters 28 (Jury Selection), 33 (Jury Deliberations and Verdict), 38 (Pronouncing Judgment) and 39 (Trial Counsel s Duties After Judgment) Read CALJIC or CALCRIM Jury Instructions for your case 12 4/14 Trial Preparation; Voir Dire Demo All attorneys should turn in all in limine motions, proposed jury instructions & proposed stipulations at noon on 4/24 in the Faculty Center For NEXT class, catch up on all prior reading assignments Reference: CEB Chapters 44 (Probation), 57 (Parole) and 58 (Victim Restitution) NOTE: Please SKIM CEB chapters 45 (Probation Revocations), 46 (Work Furlough and County Parole) and 47 (Effect of a Criminal Conviction on Professional Licenses) IF these chapters involve issues relating to the defendant in your case. Class 13 is on the next page 6 of 7

7 13 4/21 Jury Trial, Part 1: In Limine Motions & Voir Dire Both prosecutors & defense attorneys should turn in an informal sentencing BRIEF (two to four pages) at noon on 5/1 in the Faculty Center. Your sentencing memoranda should be based on the law and the facts of your case. Please draft your sentencing memorandum (1) as if the defendant has been convicted of ALL charges at trial, (2) in the form of an argument which weaves specific facts of your case with the applicable sentencing criteria, and (3) taking into account what, if any, specific sentence you will seek as the appropriate disposition. Please address the issue of whether the judge has the discretion to place the defendant on probation without running afoul of a statutory provision. If so, what should the judge order as the terms of probation? Why? If not, what should be the proper state prison sentence? Why? What do you think is the proper result in this case? Why? Please argue the facts and the law in terms of what you believe is the fair and appropriate disposition in your case. Both prosecutors & defense lawyers should be prepared to argue their respective positions at the hearing on the motions in limine & to conduct an in-class voir dire. 14 4/28 Jury Trial, Part 2: FINAL TRIALS at the Hall of Justice Enjoy trying your case! Please turn in your Trial Binder with all trial materials at the end of the trial in order for me to grade it. Please provide me with your contact information so I can return your Trial Binder to you after I finish grading it., but by the end of tonight s class, please provide Prof. leff with the names of any and all people you will be bringing to the Hall of Justice next week for your final trial. This information is necessary for the security guards from the Sheriff s Departmentat the Hall of Justice. All witnesses; bring at least 2 prospective jurors to watch your trial. 7 of 7

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