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Ken Tableman Law Blog

Foundation for testimony

When a witness testifies about something without personal knowledge of the underlying facts we say the testimony lacks foundation.  Under Federal Rule of Evidence 602, "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Conclusory observations, without the underlying facts are no good.  United States v. Dotson, 799 F. 2d 189, 192-93 (5th Cir. 1986).  Just saying that he has known the fact for a long time does not establishthat the witness has personal knowledge of a fact.  It does not show why or how the witness knew the fact.  United States v. Sandles, 469 F. 3d 508, 515 (6th Cir. 2006).  

If the proponent of the evidence can't establish a proper foundation, then, on objection, the trial court should exclude the evidence.  

Remember to make your adversary lay a proper foundation, and object if he or she does not.

Plea Bargaining and Waivers of Appeal

Plea bargaining and Waivers of Appeal

A little known secret in the law is that most criminal cases end not with a trial, but with a guilty plea.  In some years in federal court more than nine out of ten cases end with a guilty plea.

Negotiating a plea and the terms of any plea agreement can take a great deal of work.  Often the government will want a defendant to waive his or her right to appeal the sentence.   A broadly written waiver of appeal can bar not only an appeal of the conviction and sentence, but of a motion to withdraw a guilty plea, or of a ruling by the trial court that greatly increases a sentence.

It is often possible to negotiate the language of an appeal waiver to allow appeals of contested sentencing issues or of objections to the trial court's decisions at sentencing.  Make sure you understand what you are giving up before you agree to any form of appeal waiver!


Reasonable Doubt in criminal cases-- why?

In criminal cases defendants are presumed innocent and the prosecution must prove their guilt beyond a reasonable doubt.

Why?  Because as a people we so prize liberty that we have decided that before we imprison someone we will require a very high level of certainty. "It is better to let ten guilty persons go free than to convict one innocent person." 

The Constitution does not require any particular form of words to use to tell the jury of the government's burden on proof beyond a reasonable doubt. Victor v. Nebraska, 511 U.S 1 (1994)

The federal courts in the Sixth Circuit use the "hesitate to act" instruction:  "Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to to rely and act on it making the most important decisions in your own lives."  Other federal courts use the "firmly convinced" instruction: "Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt." The Seventh Circuit Court of Appeals in some decisions says that the trial court should not define reasonable doubt, unless the jury asks for more instruction on reasonable doubt. United States v. Hall, 854 F 2d 1036, 1043-44 (7th Cir. 1988)

Because important life decisions may be trivial in comparison to a finding of guilt in a criminal case, the firmly convinced instruction does a better job of conveyng the concept.  

An excellant treatment of this topic in depth, and the inspiration and source for this posting, is found at Sarah Riley Howard and Kelechi Adibe, Hestitating to Act on the Duty to Educate Jurors: Improving the Sixth Circuit's Reasonable Doubt Jury Instruction, 26 Bar and Bench, Newsletter of the W.D. Mich Federal Bar Association, 15 (August 2013)


Setting Aside a Conviction

Can you ever clear your record for a criminal conviction?  Yes, in state court, and maybe in federal court.

Under Michigan law you can apply to the court that convicted you, except if your conviction was for a felony carrying a life maximum sentence or for certain other crimes, mostly sex offenses.  You have to wait five years, and then submit fingerprints to the state police.  They will report to the Court about any pending charges or other convictions.  If the Court thinks it is fair to set aside your conviction it can do so.

In federal court, however, the Court can only set aside a federal conviction or expunge an arrest record if the conviction or arrest was unlawful or unconstitutional, except in certain limited cases where federal law expressly permits expungement.

Criminal law - the practitioner's exception to marijuana charges

Can the federal government charge you under federal law for possessing or distributing marijuana when you have registered as a caregiver under the Michigan Medical Marijuana Act?

Yes, but, depending on the facts, you may have what is known as an affirmative defense.  If you can show that your activities conformed to state law and were in the course of your professional practice then the federal government can't convict you.  See United States v. Marcinkewciz, 543 Fed. Appx. 523 (6th Cir. 2013)  Note that practitioner and professional practice have not been defined yet in a case involving the Michigan Medical Marijuana Act.  

I have handled many federal drug cases, including cases involving marijuana, and am accepting cases in this area of the law.


Thank you for considering Kenneth P. Tableman, P.C. We look forward to beginning a relationship with you and earning your business. 



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