LAW 898A LSN CRIMINAL LITIGATION Spring 2010 Professor Susan Leff Office hours: by appointment Phone: 415-420-5239 Tuesdays, 6:30 9:10 PM Email: leffs@hotmail.com CLASS LOCATIONS: Please check class locations on the syllabus. Class will meet either at 536 Mission Street (check classroom locations on 2 nd floor by Elevator #3 during the first week of class) or at the Hall of Justice, 850 Bryant Street, San Francisco (check courtroom locations with Professor Leff or the Teaching Assistant.) COURSE OBJECTIVES: Acting as either prosecutors or defense attorneys in a semester-long simulated criminal case, students will provide ethical and competent representation, promote justice, fairness and morality, strive to improve the legal profession, and engage in professional self-development through meetings with guest judges, speakers and/or lecturers. Students will become proficient at skills including issue-spotting, problem solving, legal analysis & reasoning, conducting legal research and factual investigation, drafting motions, engaging in clear and effective communication, counseling, negotiating, litigating, organizing and managing legal work, and recognizing and properly resolving ethical dilemmas. Students will learn to analyze, investigate and litigate a winning strategy in a criminal case. METHODS OF INSTRUCTION: This course provides an opportunity for experiential learning in the criminal justice system. Students 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 will act as mock courtroom judges and may be invited to join student lawyers for class meetings to demonstrate special topics related to criminal litigation. REQUIRED TEXT: Criminal Litigation in Action ISBN 9781556816871 ( CLIA ) by Laura Berend and Jean Montoya (NITA, 2002), available at the GGU Bookstore. REFERENCE TEXT: CEB California Criminal Law: Procedure & Practice (2009 Ed.), the most widely used authority in California. ONLINE VERSION: The electronic version of 2009 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 11, 2010 ends May 15, 2010. For access to CEB, please do the following: 1. On or after January 11, 2010, go to: www.ceb.com/onlaw/studentlogin.asp 2. Enter access code Rutberg10 (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 on the left side where you see Criminal Law to view the chapters. 1 of 6
OTHER REFERENCE MATERIALS: This class has a Westlaw TWEN website, accessible through your Westlaw password: http://lawschool.westlaw.com/twen/ Real life motions, articles, transcripts & other useful readings will be posted on TWEN. ATTENDANCE: Because this is a skills-performance class, your presence is REQUIRED at all class meetings & court hearings. Upon a student's first unexcused absence, the instructor will reduce the student s grade by one step (A to A-.) Students with two or more unexcused absences will not be permitted to conduct the final trial and will not receive credit for the course. However, the instructor has the discretion to excuse a student from a class meeting based upon illness or emergency. GRADING: Grades are based on the instructor s cumulative evaluation of the students skills. 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 maintain a Trial Binder with all trial assignments, which you will submit for grading after our final trials are completed. 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) actors willing to play the part of a witness in the simulated crimes. All actors must be available on the dates noted in the syllabus to participate in our simulation in various ways, including, but not limited to, being interviewed by investigators and/or lawyers and testifying at hearings, and eventually, at trial. Note: Students are responsible for ensuring witness participation. 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 ethically & appropriately: Student lawyers, witnesses & guests will behave ethically and appropriately while participating in this course. Students, witnesses and guests will follow all rules at all times, including at the Hall of Justice. Student lawyers will dress in trial court attire for hearings at the Hall of Justice but may wear business casual clothing for classes held on campus. 4. Assignments: Please use TWEN (which has a time-stamp) to turn in assignments for Professor Leff. You may fax, email or make other mutually convenient arrangements to exchange assignments with opposing counsel. Please bring TWO extra hard copies of assignments with you to each class for judges. 5. Conduct Preliminary Hearings: February 23, 2010 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 27, 2010, 6:00-9:30 p.m. at Hall of Justice. 2 of 6
SYLLABUS # Date Topic, Reading Assignments and Deadlines Witnesses Needed? 1 1/12 Introduction: Overview of Course; Ethics; Arrest and Detention NONE For today s class, you should have read: CLIA, Chapter 1 (Be ready to answer in class questions, pp. 7 and 27) Reference Reading: CEB Chapters 2 (Professional Responsibility) & 4 (Arrest & Bench Warrants) & TWEN readings for class 1 CLIA, Chapters 2 & 7 (review questions pp. 73 & 271) Reference: CEB Chapters 7 (Pleadings you may just skim the parts about joinder & severance) & 11 (Discovery); also skim Chapter 1, section 1.8 TWEN readings for class 2 For NEXT class, please have contact information available for your witness(es) and be sure to tell witness(es) 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 1/19 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) provide your contact information to your partner, your opposing counsel, your professor and your TA; (2) provide your witness(es) contact information to your partner, your opposing counsel, your professor and your TA; and (3) sign up your team for a time slot for next week s crime. CLIA Chapter 3 (Review questions, p. 107) Reference: CEB Chapters 3 (Right to Counsel: The Attorney-Client Relationship), 10 (The Client Interview), & 5 (Release Procedures) TWEN readings for class 3 For NEXT class, catch up on all prior readings. Also, please prepare your witnesses and defendants to take part in the crime, which will take place next week at specified times. 3 1/26 Class Does Not Meet: Crimes Scheduled On Campus! Prosecutors: Police Reports will be available immediately after the crimes are committed Prosecutors: Complaints and discovery are due 1/28 at noon. Defense Attorneys: Bail/OR motions due 1/29 by 5 p.m. CLIA, Chapter 4 (review bail questions on p. 129 and related materials through page 166) Reference: CEB Chapters 6 (Arraignment), and 22 (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 6
4 2/2 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 Defendants CLIA, Chapters 5 & 6 (Review questions pp. 205) Reference: CEB Chapters 27 (Deferred Entry of Judgment, Diversion, and Preplea Probation Report), 8 (Preliminary Hearings) and 12 (Public Records) TWEN readings for class 5 For NEXT class, bring in a rough outline of blocks or topics of questions or topics you intend to ask a witness at the preliminary hearing. Next class, be prepared to demonstrate a mini version of your examination made up of one of these blocks or topics (about 10-20 questions per block. ) Remember to keep your questions short, sharp and focused! 5 2/9 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 51 (Advising Witnesses), 13 (Motions To Set Aside Information & Indictment) & 23 (Confessions and Admissions) TWEN readings for class 6 * 2/16 NO CLASS Make-up day for Monday, 2/15, Presidents Day Monday classes meet on this date All lawyers should use this week to catch up on readings, meet with their witness(es) & prepare to conduct their preliminary hearings next week. 6 2/23 Preliminary Hearings at San Francisco Hall of Justice Both prosecutors & defense attorneys should be prepared to conduct their respective examination of prosecution witnesses at the preliminary hearing. CLIA: Chapters 6 & 7, Review questions p. 271 Reference: CEB Chapters 9 (Grand Jury), 18 (Selected Pretrial Motions) & 25 (Termination of Prosecution Without Judgment) Review any sample motions or transcripts on TWEN TWEN readings for class 7 7 3/2 Preliminary Hearing Debriefing/ Pre-trial Litigation Strategies & Motions, Part 1 Including Grand Jury Proceedings, Pitchess Motions & Discovery Motions Complaining Witness, Defendant, officer; courtrooms TBA Prosecutors: Informations are due at noon today; bring original to class Reference: CEB Chapters 16 (Search & Seizure Motions), 26 (Pleas and Case Settlement), & 30 (Preparation & Presentation of Case and Argument) TWEN readings for class 8 & sample motions/transcripts provided on TWEN 4 of 6
8 3/9 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 (Defendant will be arraigned in absencia per Penal Code (Section 977) CLIA: Chap. 8 & 12 Reference: CEB Chapter 32 (Jury Instructions) 34 (Prejudgment Motions), 52 (Representing the Noncitizen Criminal Defendant) and read ahead in order to prepare for next week TWEN readings for class 9 * 3/16 SPRING BREAK! (Relax, Enjoy and Rest up!) 9 3/23 Jury Instructions & In Limine Motions Defense Attorneys: You must file at least one defense motion, which is due at noon today CLIA, Chapters 10 & 11 Reference: CEB Chapters 36 (Misdemeanor Sentencing), 37 (Felony Sentencing), 38 (Probation), & 39 (Work Furlough & Other Alternative Sentences) TWEN readings for class 10 10 3/30 Plea Negotiations; Sentencing Considerations, Including Immigration and Other Consequences, Part 1 Prosecutors: Oppositions to Defense Motion are due at noon today 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 28 (Trial by Court or Jury), 31 (Selected Trial Motions), and 24 (Prior Convictions & Uncharged Misconduct) TWEN readings for class 11 11 4/6 Hearings on Pretrial Motions; Sentencing Considerations, Including Immigration and Other Consequences, Part 2 Witnesses as Needed Defense Attorneys: Any Defense Replies to Prosecution Opposition Motions are due today at noon All attorneys should be prepared to argue their respective positions at the hearing on the pretrial motion in class and should continue discussing proposed trial stipulations with opposing counsel to turn in next week. CLIA, Chapters 9 & 12; Review questions on pp. 331-332 Reference: CEB Chapters 29 (Jury Selection), 33 (Jury Deliberations and Verdict), 35 (Pronouncing Judgment) and 41 (Trial Counsel s Duties After Judgment) Read CALJIC or CALCRIM Jury Instructions for your case TWEN readings for class 12 5 of 6
12 4/13 Trial Preparation; Voir Dire Demo All in limine motions, proposed jury instructions & proposed stipulations are due today at noon. For NEXT class, catch up on all prior reading assignments, continue preparing for trial and update your trial binder Reference: CEB Chapters 48 (Mental Competence, Mental Defenses & Related Issues) & 40 (Victim Restitution) TWEN readings for class 13 NOTE: Please SKIM CEB chapters 46 (Probation Revocations), 47 (Parole Hearings), 53 (Effect of a Criminal Conviction on Professional Licenses), 56 (Juvenile Delinquency Proceedings) & 50 (Extradition) IF these chapters involve issues relating to the defendant in your particular case. 13 4/20 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 today. 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 today s hearing on the motions in limine & to conduct an in-class voir dire., 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 Department at the Hall of Justice. For NEXT class, catch up on all prior reading assignments, continue preparing for trial and update your trial binder Reference: OPTIONAL: CEB Chapters 43 (Misdemeanor Appeals) & 44 Felony Appeals) TWEN readings for class 14 14 4/27 Jury Trial, Part 2: FINAL TRIALS at the San Francisco 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. All witnesses; bring at least 2 prospective jurors to watch your trial. 6 of 6