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Thursday, July 25, 2013

Hugh Selby Reviews Henning, Feller and Henning'sCriminal Pretrial Advocacy Book

Book Review:  Criminal Pretrial Advocacy, Henning, Feller and Henning,  West Academic Publishing, 2013, c 170 pages, including an index and detailed contents.

What’s a foreigner doing, reviewing a book on US Federal criminal pretrial essentials? And the answer is that this foreigner, being as ignorant as the typical law student, is the ideal reviewer.  If it works for this reviewer, and it does, then it will work for your students.

This is a step by step journey, combining relevant statute, rules, key cases and guidelines with documentary illustrations, starting from the issue of a complaint through bail or detention, thence preliminary hearing, grand jury, and discovery, moving onto the range of pretrial motions, and ending with the outcome most likely by far – plea agreement and sentencing. I’m told that the formalism of the Federal criminal work is a good platform for students who will be working with a State based system.

As an advocacy instructor my biggest student groups are people with law degrees.  They have studied criminal law but, like too many of their teachers, they know nothing about the nuts and bolts.  They, and their teachers, needed this book.  I’m so glad it’s arrived – albeit with some wrinkles.

Before writing this review I was in touch with the authors.  I was upset.  The publisher’s staff must have been asleep when this book went to press because no competent publishing editor has been near this manuscript in a spirit of wakefulness.  The authors have assured me that the typos will be fixed: I’ve suggested an errata sheet.  Makes me angry though – law publishers usually hand out very little to authors by way of royalty.  There’s a legitimate expectation that they will carefully check and recheck the manuscript as their part of the unequal bargain.

The authors told me that their book should be used in conjunction with two case files and a teacher's manual. The two case files involve federal prosecutions in a drug-gun case and in a mortgage fraud case. The files include investigative reports, documentary evidence and confidential memoranda for each party. They are available in an electronic format so teachers can match them to their particular jurisdiction, as well as easily transmit the documents to students at appropriate points throughout the semester. The files are available to teachers at www.henningcrimpretrialad.com .  To access them requires a password that takes a day or so to arrive. [I’ve applied but after four days waiting I’ll leave the review of those materials to another user of this blog.]

The teacher’s manual, which is available in hard-copy and on the same website, gives guidance to the teacher on how to structure the course and make use of the materials. The teacher’s manual also includes sample course development, bench memos on the major legal issues, and instructions for the assignments. 

As an outsider, and appreciating that some State provisions might be a lot more open than the Federal system, I was surprised to find that automatic pre trial disclosure by the Federal prosecution to the defence is much more limited than I am used to. Our Australian rule is, “If you’ve got it, then absent some public interest immunity (which is a hard test), hand it over to the defence”.

On the other hand the US Federal system avoids some bizarre elements of ours.  For example, sensibly a defendant in the Federal system who is asserting an insanity defence must agree to a Government psychiatrist or psychologist examination. We are not so sensible: the accused can refuse to be seen by a Government expert, forcing that expert to merely respond to the defence expert.
And there’s only a couple of our States that require the defence to share likely expert evidence with the Government before trial.  Until recently the Government had to prepare its cross of a defence expert as that person gave their direct.

Because this book should be widely used I expect the authors to prepare a second edition.  When that happens I hope that, along with fixing the typos, they’ll make a few other changes. For example, given that this is a student book they need to explain why a defence advocate does not, will not call their client to give evidence at a detention hearing.  They’ll write a bit more about cash bonds and other financial instruments that might be used as bail conditions.

When they write about a preliminary hearing and the standard of ‘whether a reasonable juror could credit the testimony’ they’ll put that apart and show how tight or elastic that test can be by way of a few illustrations.

And, when they write about cross-examination they will not repeat again that all too frequently stated mis-instruction  about cross never being a fishing expedition, never having the witness explain themselves.  Just this week I conducted a cross of a Government expert at a training session: the entire cross was a series of open questions designed to make that witness our witness.  I built him and his forensic work up and up – way beyond his report, because we wanted his report to point the finger of guilt away from the accused and towards a third person.  It worked but only because I knew the ‘Do not ask a question to which you don’t know the answer’ is wrong, wrong, wrong.

Hugh Selby © July, 2013.


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