Trial Advocacy and the Ethical Prosecutor

Trial Advocacy and the Ethical Prosecutor
Prof. Coleman
Please see the syllabus below and do the readings (available in TWEN) assigned in the right column of
the syllabus for the first class, June 9.
Please also read:
You should also be prepared to discuss the use by the local prosecutor of the criminal grand jury to
investigate police deadly force cases against civilians (i.e., Ferguson, Missouri and Staten Island, NY);
specifically: how to fairly investigate such cases, and who should do it, and in what forum?
Adjunct Professor Jerry P. Coleman
Summer, 2015
Course Summary:
We all regularly read – in news articles and editorials, in appellate opinions, and even in law
school innocence project reports – about ethically challenged prosecutors and police who suppress
defense-favorable evidence at trial, violating the 50 year old Supreme Court rule of Brady v. Maryland.
In this 3 unit course, a career local prosecutor, ethics educator, and Brady specialist/innovator will guide
you through the pitfalls of the Brady rule and into the promised land of ethical trial advocacy. By
course’s end, you will have learned to critically read police reports, defend yourself against real (&
imagined) Brady violations, and personally conduct all the key aspects of trial practice from jury
selection to closing argument in real criminal cases – and in the process, may change your assumptions
about what it means to be a prosecutor.
The class is divided into 14 sessions, with case law and supplemental readings to be done in
advance of each session. The sessions will provide a mix of instructor lecture/demonstration and
student exercises; the latter include hearing an actual United States Supreme Court oral argument on a
recent Brady case, reenacting a recent notorious San Francisco dope preliminary hearing revealing a
Brady violation (later prosecuted by the feds), individual reports from the readings, and team
demonstrations of all aspects of trial practice from a simple felony case; the exercises culminate in each
student being assigned an actual complex misdemeanor case file to work up for trial, then (over many
weeks) personally demonstrating 3-5 aspects of actual jury trial practice in a mock trial setting (voir dire,
opening statement, direct examination, cross examination, and closing argument). Obviously, class
participation is not just strongly recommended, but is the very raison-d’etre of the course. Grading is
pass/no credit, but includes your participation in the following: a written reply brief to a defense motion
for dismissal and Brady sanctions (to be turned in on class 3); team exercises in the simple felony case
(classes 4-8); and individual trial advocacy demonstrations on the complex misdemeanor cases (classes
11-14). A bump-up in grading will be given for consistently useful (though not necessarily merely
frequent) class participation; a bump-down is possible for consistently sitting back silently and letting
others carry the discussion. Missing three classes unexcused will result in a no credit grade. Use of
laptops, tablets, and smart devices to take notes or follow the course readings is allowed; but if they are
used for checking emails, movie listings, or ordering pizzas outside of class, then such devices may be
subject to the real world sanction imposed on such misuse in real criminal courts: forfeiture of the
device for the pendency of the session by the court bailiff. (Ordering a pizza for in-class sharing by the
Professor is allowed however, to celebrate completion of closing argument in your case.)
Course Syllabus
(each class has three topic blocks, approx. 45 minutes apiece; L denotes JC lecture, E denotes student
exercise; SM denotes course supp. materials)
Topic & Exercises
The Long March to Trial
A. Charging, Investigation, & Search Warrants
(With an Ethical Emphasis) (L)
B. Conducting a Grand Jury Hearing:
Prosecutor with Three Hats, as DA, Defense,
& Judge (L) & (E)*
C. Introduction to Discovery: DA Brady and
Defense Pitchess (L)
[*This class will include a spirited discussion of the use
of grand juries to investigate police deadly force cases
against civilians, in this post-Ferguson and post-Staten
Island environment.]
The Worst Brady Boo-boos
A. Student Reports on Brady Misconduct from
Recent State or Federal Trials (E) [Students
will do the reading, and gather up one
reversed or disciplined case to discuss each,
evidencing Brady misconduct by prosecutors
and/or police.]
B. How Not to Justify Brady Misconduct Before
the United States Supreme Court (E) [Class
Cases & Ethical Rules
Johnson v. Superior Court
(1975) 15 Cal. 3d 248; Penal
Code § 939.71; People v.
Backus (1979) 23 Cal.3d 360,
393; Brady v. Maryland (1963)
373U.S. 83; Pitchess v.
Superior Court (1974) 11 Cal.
3d 531; City of Los Angeles v.
Superior Court (Brandon)
(2002) 29 Cal.4th 1; Alford v.
Superior Court (2003) 29 Cal.
4th 1033; Gutierrez v. Superior
Court (2003) 112 Cal.App. 4th
1463; Abatti v. Superior Court
(2003) 112 Cal.App.4th 39;
Cal.Bus.& Prof. Code 6068;
Cal.Rule of Prof.Conduct (all
SM) (CRPC) 5-110 [performing
the duty of a member in gov’t
service], 2-100
[communication w/a
represented party], 5-120[trial
publicity], 5-200 [trial
conduct]; 5-220 [suppression
of evidence]; 3-210 [advising
the violation of law];ABA
Model Rules (all SM) 3.3
[candor toward the tribunal],
3.4 [fairness to opposing
party/counsel], 3.6 [trial
publicity], 3.8 [special
responsibilities of a
“Rampant Prosecutorial
Misconduct”, NY Times
editorial, 1-5-14 (SM); “Bill
Would Bolster Brady”, San
Francisco Daily Journal, 2-3-14
(SM); Assembly Bill 885 (text,
history, & analysis) (SM); In re
Matter of Benjamin Field
(state bar court opinion on
review) (2010) No. 05-O-
will listen to US Supreme Court oral argument
in Smith v. Cain, involving the New Orleans’
DA’s Office.]
C. The Brady Dirty Dozen; The Hardest Brady to
Deal With (Police Administrative
Misconduct) (L)
[At the end of class, students will be given an
actual SF Public Defender Pretrial Motion for
Brady Violations and Sanctions (SM); and the
Henry Hotel Police Report (SM); both to deal with
next class]
Brady at the Real Street & Trial Court Level; &
Transition to Trial Advocacy
A. Student Written Reply Briefs (as DA’s) to
Defense Sanction Motion Turned In &
Discussed (E) [In the interim from class 2 to
class 3, the students will write actual reply
briefs, as prosecutors, in response to the
defense motion for sanctions handed out in
class 2; the start of class 3, after collecting the
briefs, will be a discussion of the points that
should be in them; the actual turned in briefs
will count in part towards the course final
B. The Henry Hotel Preliminary Hearing (E)
[Students were given the police report at the
end of class 2; now, the class will reinact the
actual Henry Hotel preliminary hearing,
complete with the surprise defense video of
what happened, provided only in real time
after the officer testified for the DA on direct;
students will read from the hearing transcript
(provided in class - (SM)) the parts of the DA,
the defender, the police witness, and the
judge; at the conclusion of the hearing, there
will be a discussion of the ethical issues of
turning the defense video over to the
prosecution in advance versus waiting till
preliminary hearing to trap the officer (but
forcing the client to remain in custody
another week).]
C. Strange Bedfellows: DA and Defense
Working Together to Solve a Brady Issue
Where the Court Refuses to Play its Essential
Part (L) [After the middle block of extreme
litigational rivalry between prosecution and
defense, this final block shows how in some
00815 (SM); Tennison v. San
Francisco (9th Cir. 2009) 570
F.3d 1078; United States v.
Olsen (9th Cir. 2013) 737 F.3d
625 (Kozinski dissent); Smith
v. Cain [read opinion in
advance at (2112) 132 S.Ct.
627; transcript and actual oral
argument to be provided in
class (SM)]; Fagan v. Superior
Court (2003) 111 Cal.App.4th
People v. Jordan (2003) 108
Cal.App.4th 349; United States
v. Agurs (1976) 427 U.S. 97;
Kyles v. Whitley (1995) 514
U.S. 419; CRPC 3-100
[confidential information of a
client] (SM);CRPC 5-300
[contact w/ officials] (SM)
ABA Model Rule
1.6[confidentiality of
information] (SM);
Sample JC In Limine Motion
for general trial use (SM);
Coleman’s Anatomy of a Trial
(SM); Coleman’s General
Brady Law Topic Outline for
USF Class (SM)
circumstances, both sides can actually work
together to achieve Due Process jointly]
To See Them Speak: Voir Dire, the Trial Begins, &
the Issue of Race
A. Preparing For Trial, the ‘PDF’ Strategic
Approach (L), followed by: Ethical Voir Dire –
Law & Techniques (L) [2 topic blocks]
B. Student Exercise, discussing and practicing
voir dire in context of “Spiderman” burglary
case (E)
The Newsflash Opening Statement (or,
“Meteor Speeding Toward Earth; Film at
Direct Examination That’s Dramatic Not
A. Demonstration of a Powerpoint Opening
from the Largest Jewel Heist in SF History (L)
B. Student Exercise of Opening Themes for
Spiderman Case (E) [2 topic blocks] [Students,
in teams, demonstrate their opening
statements (5 min. max.) in the Spiderman
burglary case, by concentrating on their
chosen themes]
A. Examining the Effects of an Effective
Examination: Witness Order, Case Timeline
Organization, & Techniques of Direct (L);
plus, I Hear Him Say We Need to Know the
Evidence Code: Simple Rules of Evidence for
the Conduct of Criminal Trials (L)
B. Student Exercise of Direct Examinations of
the Spiderman Victim, Case Detective, &
Criminalist (E) [2 topic blocks] [Students
divide the roles into witness and examiner,
Spiderman burglary case file
(SM); People v. Wheeler
(1978) 22 Cal.3d 258; Batson
v. Kentucky (1986) 476 U.S.
79; Smith Kline v. Abbott Lab
(9th Cir., 2014) 2014 DJDAR
717; CRPC 5-320 [contact with
jurors] (SM); Coleman’s
Anatomy of a Trial; “Jury is
still out on the full impact of
‘the CSI effect’”, SF Daily
Journal, 1-4-14 (SM); Article:
“The Ethical Boundaries of
Cybersleuthing: Picking a Jury
in the Digital Age”, CDAA
Prosecutor’s Brief, summer
2014 (SM); People v. Black
Cal. Supreme Court case &
Daily Journal Article, 3-28-14
Spiderman burglary case file;
Alameda County District
Attorney’s Office Points &
Authorities training bulletin by
Sr. ADA Jeff Rubin on ethical
opening statement (SM);
“Trial Tips – Punch a Juror in
the Mouth”, by Elliott Wilcox
(SM); Coleman’s Anatomy of
Spiderman burglary case file;
“How (not) to Handle
Exhibits”, by Judges Kathleen
White & Daniel Maguire (Yolo
Co. Superior Court), Daily
Journal, 5-23-13 (SM);
“Practical Tips on How to
Make a Good Record”, by
James Atkins, San Diego DA’s
Office, in CDAA’s Prosecutor’s
Brief, vol.34, no.1, 2011 (SM);
Coleman’s Anatomy of Trial;
CRPC 5-210 [member as
and conduct 3 directs; meanwhile, one class
member will be tasked for each direct to play
the role of defense attorney to raise valid
objections during direct examination.]
Crushing it at Cross Examination: Perils &
Ethical Yet Effective Closing Argument
Case Exercise Prep I (Investigation & Proof) [Students
are divided into 3 teams, and 3 separate
misdemeanor cases are assigned, one to each team;
these cases represent typical, though complex,
criminal misdemeanors going to trial in SF and around
the state: (1) a ‘no-driving’ DUI (“Asleep at the
Wheel”), a co-defendant loaded/concealed firearms
possession (“Fun with Guns”), and a family battery
A. Former SFDA Trial Attorney Ethics
Discussion: Dealing with the State Bar (L)
B. Cross Exam Types and Tips (L)
C. Crossing the Defense Eyewitness
Identification Expert (Powerpoint lecture
and transcript demonstration) (L)
A. The Seven Deadly Sins of PowerPoint (L);
plus: Avoiding Error: the Many Pitfalls; and,
Some Instruction on Jury Instructions (L)
B. Student Exercise of Closing Argument in the
Spiderman Case (E)
C. Coleman Spiderman Close Demo (L)
witness] (SM); “’Believe Me,’
Prosecutor as Witness AND
Advocate is Not a Pretty
Picture”, by Jerry Coleman,
CDAA’s Did You Know…, vol.8,
no.6, June 2002 (SM).
Evidence Code sections: 352,
452, 771, 788, 801-802, 1200,
1220, 1230, 1238, 1240, 1242,
1271, 1280, 1291, 1552, &
1560; United States v. RangelGuzman (9th Circuit, May 28,
2014) (SM)
Spiderman burglary case file;
“How to Detect ‘non-answers’
during Cross-Examination”, by
Elliott Wilcox (SM) ;
Coleman’s Anatomy of Trial;
Transcript of Cross of ID
Expert in Cuong Tran robbery
trial (SM)
Spiderman burglary case file;
“Keeping Jury Arguments
Within Bounds”, by Garrett
Beaumont, Sr. Dep.Atty.Gen.,
in CDAA’s Did You Know…,
Mar-Apr., 2012 (SM);
Coleman’s Anatomy of Trial;
Griffin v. Caifornia (1965) 380
U.S. 609; Doyle v. Ohio (1976)
426 U.S. 610; People v.
Katzenberger (2009) 178
Cal.App.4th 1260; Closing
transcript in SF mother
murdering her children case
(SM); SF Daily Journal article,
3-3-14: Prosecutor went too
far (SM)
3 Complex misdemeanor case
files (basic file materials for: “Asleep at Wheel” case (SM);
- “Fun with Guns” case (SM) ;
- “Mean Mommy” case (SM).)
(“Mean Mommy”). In this class’ exercise, each team
presents its request for further investigation on its
case, and discusses the crime elements and means it
chooses to prove them; should the teams properly
identify issues worthy of extra investigation, the
requested items will be handed out at class end.]
Case Exercise Prep II (Trial Strategy & Presentation)
[During this class, each team justifies its trial strategy
(based on the original and subsequent case materials)
covering: witness order, case theme, and &
anticipating moves of the opposition; as the teams
evolve more into individual presentations for the
upcoming classes, more personal variations of trial
strategy are encouraged.]
Also planned for this class will be a guest
presentation by a former Chief Assistant DA in SF
who now represents police in internal discipline
hearings, “Defending the Police in Misconduct
Hearings: Due Process for Them Too”
Voir Dire Individual Presentations, all teams [Each
team member will conduct a voir dire of a full 12
person panel of jurors (all juror roles played by the
Professor); after all team members of a specific case
have completed their voir dire, there will be oral
critiques by the Professor; then the next case team
will do voir dire, then critiques; then the final team’s
individual voir dire, followed by critiques.] There will
also be a surprise handout and exercise: 2 minute
strategic jury selection
Opening Statement Individual Presentations, all
teams [Same organization as the last class, but with
opening statement demonstrations, by team, then
critiques. Time permitting, this class may actually
begin some direct exams noted in the next class.]
Direct Examination Individual Presentations, all
teams [Some team members will play the role of
examiner, some the role of witness, for each case;
and one member of the team will play the role of
defense attorney to raise valid objections to the direct
examination! Same organization of
case/critique/case/critique as before.]
Theories of Cross Examination [The class before,
students will be told which key defense witness would
take the stand in the defense case of their trial, and
what the defense direct would be; for this class,
selected members of each team will be asked to
report on an outline of cross they believe would be
helpful to utilize against such defense witnesses.]
3 Complex misdemeanor case
files (basic file materials); as
well as supplemental case
materials provided in
response to the past class’
investigative requests (SM)
Misdemeanor case files
Misdemeanor case files
Misdemeanor case files
Closing Argument Individual Presentations, all teams
[Same organization as before: all case member
arguments/critiques/next case/critiques; closing
argument presentations will be required to include a
powerpoint element, and the Professor will add
specific critiques on that aspect of the presentations.]
Misdemeanor case files