Puerto Rico Association of Criminal Defense Lawyers

Rules Amendments Effective December 1, 2005

Effective December 1, 2005, there are a number of amendments that go into effect regarding the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure. In particular, the following amendments to the rules will take effect on December 1, 2005:

• Appellate Rules 4, 26, 27, 28, 32, 34, 35, 45, and new Rule 28.1;
• Bankruptcy Rules 1007, 2002, 3004, 3005, 7004, 9001, 9006, and 9036;
• Civil Rules 6, 27, 45, and Supplemental Rules B and C; and
• Criminal Rules 12.2, 29, 32.1, 33, 34, 45, and new Rule 59.

See generally this November 30, 2005 memorandum. The strikeout version of the Criminal Rules is here, and of the Appellate Rules here (in a memo from Judge Alito).

Justice Breyer: Get rid of Peremptory Challenges

In Miller-El v. Dretke, 545 U.S. --, No. 03–9659 (June 13, 2005) the Court grants habeas relief to petitioner on his Batson claim. Justice Souter wrote the Court's opinion. Justice Breyer wrote a concurrence in which he posits that peremptory challenges should be done away with altogether.  He seems to be worried about preservation of the democratic institution of the jury when he states

[...] If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury’s democratic origins and undermine its representative function.

Of course, when he dissented from Booker's merits opinion and drafted Booker's remedial majority opinion, Justice Breyer's concern for the institution of the jury was nowhere to be found. While there is no doubt that peremptory challenges can and are abused from time to time, I would hate to have to try a case in which there were no peremptory challenges. What you would get is likely more background checks on jurors by the government in attempts to find for cause challenges, with the defendants in most cases not having access to this sort of information. See our post on this here.

Update: Professor Berman writes about Justice Breyer's concurrence here at Sentencing Law and Policy.

Get the Government to Approve Your Closing Argument - Then You Can Make It

Why does the U.S. District Court in Puerto Rico spend thousands of dollars on seminars to get CJA panel attorneys to use technology in the Courtroom, and then foreclose counsel from making a closing argument using PowerPoint unless defense counsel first showed it to the prosecutor? I hope this is not the understanding of any other members of the federal bench here, but it was certainly disappointing to learn that even one judge thought this was necessary. And it had to be done before the prosecutor closed! See this post at TrialPrep.