Brady and Giglio Final Paper

FINAL PAPER TOPICS

        Choose any one of the topics below.  Your papers should be 8-10 pages long, and are due on April 28, 2017.  

Topic 1 – Brady

Brady and Giglio are difficult topics for many of the reasons that we discussed in class, but Giglio – which, as you will recall, requires the government to turn over impeachment material for any witness it intends to call -- is especially difficult as applied to police officers because they are frequent witnesses.  Write a brief for the government in support of a protective order seeking leave not to turn over the following pieces of information about a police officer that you intend to have testify at a trial in which he will testify that he purchased 10 grams of heroin from the defendant:

        1.        That he has carried on an extramarital affair for the past two years.

2.        That he has smoked marijuana five times since he became a policeman, 10 years ago

3.        That he has been sued three times for defaulting on loans.

4.        That he is on tape asking another police officer to “help out” with his wife’s parking tickets – the fair implication being that he is asking the other officer to tear up the ticket.  (He has not been disciplined for his request.)

5.        That in a suppression hearing in another case, the judge rejected the officer’s testimony that he saw the defendant carrying a gun as he fled from the police; the judge stated “I think that the officer was standing sufficiently far away, and the lighting was such, that he may have been honestly mistaken, or, if he was not mistaken, then he may have been less than candid with the court about precisely what he saw.”

Topic 2 – Victims in the Criminal Process

Do you agree or disagree (or agree in part and disagree in part) with the following argument:

When a defendant commits a crime – say, a murder or a robbery – his sentence should not depend on the moral stature or particular characteristics of the victim.  That is, a person who kills a poor man should be punished (all other things being equal) the same as a person who kills a rich man; the moral reprehensibility of a rapist does not depend whether the victim has a family.  Therefore, the victim’s family should have no role to play in the sentencing, because it could only lead to unjustified differences in sentences for defendants who are otherwise identically situated.  

Topic 3 – Expungements

Do you agree or disagree (or agree in part and disagree in part) with the following statement regarding the right of acquitted people to seal the records of their accusation and their trial:

Judge Gleeson’s opinion in Doe v. United States is heartfelt and powerful.  Those who have been convicted of crimes are treated unduly harshly by society, even after they complete their sentences.  But even worse are people who have been acquitted in criminal trials, or who have succeeded in having charging instruments naming them dismissed.  Their exonerations never generate as much press as the original accusatory instruments, and their lives may be ruined by the damaging or embarrassing material disclosed at trial.  Therefore, it makes sense that people who have been acquitted in a criminal trial should have the right to seal all of the materials from the trial and the fact of the accusation.  They should be able to answer “no,” when asked whether they have ever been charged with a crime.

In addressing this statement, you may (but need not) wish to review New York Criminal Procedure Law 160.50, which is a sealing statute of the kind discussed in the statement that includes a “law enforcement exception,” which provides that when a person applies for a position in law enforcement, the law enforcement agency to which she applies can get an order unsealing her records, including th arrest records and trial records (transcripts, etc.)  

Topic 4 - Interpreting Ganias

You are a federal prosecutor in the Second Circuit and you have just read United States v. Ganias, 824 F.3d 199 (2nd Cir. 2016) (en banc).  Your boss, the United States Attorney, asks you to draft an office policy on the retention and use of information obtained pursuant to search warrants executed on computers.  Your policy should address:

1.        How long the office may retain information that is on the hard drives and that was responsive to the original search warrant, and what if any limits are there on the use of such information?  Does it matter if the search in which the material was recovered results in a prosecution?  What if it is a search in an investigation that does not lead to any prosecutions?  What if any eventual prosecution ends in an acquittal?

2.        How long the office may retain information that is on the hard drives and that was not responsive to the original search warrant, and what if any limits are there on the use of such information?

3.        If there are any limits on the retention of information -- that is, if you determine that there is some information that, under at least some circumstances, must be destroyed or sealed -- what if any Brady obligations does the office with respect to such information?  Does the office have any obligation to search retained, but non-responsive, materials for Brady material?  Does the office have to sift through material for Brady information before destroying or sealing that material?

Topic 5 - Privacy and Technology:  License Plate Readers