By Gordon Mehler, John Gleeson and David C. James, Matthew Bender & Co., 216 pages, $183
Seven years ago, the New York Law Journal published my review of the 2003 edition of “Federal Criminal Practice: A Second Circuit Handbook” in which I stated that for “those who labor in the federal courts, this book has enormous practical value.” That statement remains true for the 2010 edition, which is the 10th publication of this “must have” treatise.
The book’s foreword is written by none other than Associate Justice Ruth Bader Ginsberg of the U.S. Supreme Court, who appropriately concluded that “As Circuit Justice for the Second Circuit, I am pleased that a work of this quality is available to all who comprise the bar and bench of ‘my’ circuit.”
There are many reasons why I believe that this treatise is a “must have” for those who practice criminal law within the Second Circuit, in both the court of appeals as well as the district courts. The book lists 51 chapters in its table of contents, and includes a detailed index that enables those with no prior experience in the Second Circuit courts to swiftly locate the plethora of issues that confront practitioners on a daily basis.
What distinguishes this book from the magnitude of treatises that are routinely published is the simple fact that it is a comprehensive hornbook for those who practice in the Second Circuit. While most treatises are either too broad (covering the manner in which the various 13 circuits have ruled on numerous legal issues) or too narrow (for example only focusing on a particular legal concept; i.e., grand jury practice in the federal courts), this book is a comprehensive and easy to read resource.
Readers will not get bogged down in the time consuming task of trying to determine the state of the law in the Second Circuit, for it is readily apparent and is at one’s proverbial fingertips. However, while the primary function of the book is to assist Second Circuit practitioners, conflicting case law from other circuits are not ignored and are integrated into the book, although not as thoroughly as those treatises which cover all of the federal circuits.
An example of the user-friendly, comprehensive nature of this book is evidenced in its discussion of the recent landmark decision of Crawford v. Washington, 541 U.S. 36 (2004), which is perhaps one of the most significant changes in jurisprudence in recent history. In Crawford, the U.S. Supreme Court held that the admission of out of court “testimonial statements” offered for the truth of the matter asserted violates the Confrontation Clause when the defendant has had no opportunity for cross examination—even if the statements satisfy the requirements of the hearsay rules.
Specifically, the Crawford Court held that statements made by a witness in a police interrogation were testimonial and therefore could not be admitted if the defendant would not have the opportunity to cross examine the declarant. The threshold question that remained is defining which statements are, in fact, “testimonial.” While the Crawford Court’s decision included some examples of other statements it deemed to be “testimonial”—i.e., statements made during a prior trial or a pretrial hearing, grand jury testimony and guilty plea allocutions—the Court did not include an exhaustive list nor is the definition of “testimonial” conclusively defined. Thus, an open and often litigated issue remains in defining whether various statements are testimonial, requiring counsel to search through numerous court decisions in an effort to understand which statements have been deemed to be testimonial.
Indeed, last year, the U.S. Supreme Court revisited the issue in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and held that certificates prepared by laboratory analysts attesting that a substance contained cocaine were testimonial. Since the case law on this issue continues to develop, the book proves to be an invaluable tool in sorting through the myriad cases and it dedicates multiple single-spaced pages that synthesize the numerous rulings that have determined which statements have been deemed to be testimonial and which have not.
This handbook distills the current state of the law into an easy to read synopsis of the relevant cases and will surely save practitioners countless hours of research.
All of the significant Federal Rules of Criminal Procedure are covered in a comprehensive fashion with the exception of Rules 42 (criminal contempt) and 43 (defendant’s presence). In this regard, I have inside information that the inclusion of a detailed discussion of these two rules are in the works and will be forthcoming in future editions.
As earlier stated, the book includes a detailed, user-friendly, 80-page index intended for experienced practitioners as well as those who may be handling their first federal criminal case. Such a detailed index simplifies locating the issue being researched and contains numerous cross-references that allow swift navigation without much effort.
For example, the issue of acceptance of responsibility for purposes of sentencing can be easily located by referring to the index heading under “Acceptance of Responsibility” or “Sentencing; Acceptance of Responsibility” or “Sentencing; Responsibility, acceptance of.”
There is also an extensive table of cases that spans 100 pages and a table of statutes and rules that spans 18 pages and includes references to the rules of appellate procedure, civil procedure, criminal procedure, evidence, the sentencing guidelines, the code of federal regulations, as well as the U.S. attorney’s manual and the model rules of professional conduct.
The table of contents includes, in alphabetical order, obvious topics like the “Exclusionary Rule,” “Joinder and Severance,” “Search and Seizure,” and “Sentencing,” but also has sections devoted to more obscure topics such as “Conflicts of Interest” as well as a chapter on “Victims” that explains the law concerning the Crime Victims Rights Act, which was enacted in 2004.
The reader will find the book comprehensive, easy to understand, and current on all of the developments in criminal law within the Second Circuit.
Written by three outstanding attorneys—a federal district judge and former federal prosecutor, a veteran appellate attorney from the U.S. Attorney’s Office and a private practitioner who was previously a federal prosecutor—the authors understand the daily struggle of federal practitioners and the need to have a firm grasp on both common and unique legal issues that must be properly developed to enable successful client representation.
Having practiced criminal law in the federal courts for over 40 years, I can unequivocally state, without hesitation, that this book is a “must have”—an essential resource for all who practice criminal law in the Second Circuit. This text will save countless hours of research and facilitate swift location of answers to recurring legal issues.
Ronald P. Fischetti, a partner in Fischetti & Malgieri, is a criminal defense attorney and a fellow of the American College of Trial Lawyers.