Author: Jules Epstein

Professor Jules Epstein on the Amtrak Derailment and Private Criminal Complaints

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Director of Advocacy Programs Jules Epstein, a national authority on Criminal Procedure and the Law of Evidence, has been an influential voice in the unfolding story of whether charges will be brought against Amtrak engineer Brandon Bostian in the 2015 derailment that killed eight and injured hundreds. Prosecutors reverse course and file charges against engineer in 2015 Amtrak crash Washington Post, May 15, 2017 “Relatives of a victim of the deadly 2015 Amtrak crash have used a little-known provision of Pennsylvania law to push state prosecutors to file charges against the engineer–an abrupt turn of events in the high-profile case that last week had appeared to reach its end…Jules Epstein, director of advocacy programs at the Temple University Beasley School of Law, said the law allowing privately initiated complaints has been around for years, but is generally used in small disputes between individuals. He said, however, that even though the engineer now faces charges, there is no guarantee he will face trial. ‘There was nothing in the judge’s order that preordains the outcome,’ Epstein said. …

Sessions “De-Sciences” Forensics

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The April 2017 decision by Attorney General Sessions to not renew the National Commission on Forensic Science (NCFS) was announced as part of what he claimed would be efforts to “advance forensic science and help combat the rise in violent crime.” Whatever the Department of Justice has in mind for combatting a putative rise in violent crime, its decision will not “advance” forensics or ensure that such testimony derives from “science.” A little background is necessary. In 2009, the National Academy of Sciences – since the presidency of Abraham Lincoln the preeminent body tasked with providing independent, objective advice to the nation on matters related to science and technology – issued its report STRENGTHENING FORENSIC SCIENCE – A PATH FORWARD. While emphasizing that forensic discipline testimony – DNA, fingerprints, firearms matching, etc. – was of critical importance in solving crimes and exonerating the wrongfully accused, the NAS made clear that much of the processes and conclusions lacked scientific foundation. Whatever the Department of Justice has in mind for combatting a putative rise in violent crime, its …

“Saying “No” Is Not Client Betrayal

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“Betrayed.”   Acting Attorney General Sally Yates said “no” to President Trump and refused to order the Department of Justice to defend the immigration/refugee ban.  This was decried as an act that “betrayed” the Trump administration, stood as “a further demonstration of how politicized our legal system has become[,]” and an instance of “people refusing to enforce our laws….” These attacks on this career prosecutor misunderstand a lawyer’s fundamental duty and the specific role the Attorney General plays. Lawyers say “no” to clients all the time.  We tell clients that a particular claim or defense can’t be raised or that an argument won’t be presented.  Our duty is to the client within limits set by law.  There is no principle that says a lawyer must (or may) do whatever the client wishes and defend any position no matter how unconstitutional or unlawful. Indeed, the Rules of Professional Conduct sometimes require us to tell the client “no.” We cannot lie or present false evidence to a court, and we are also forbidden from following a superior’s orders …

Commentary: Roof Should Not Have Been Allowed to Represent Himself

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The return of death sentences by the jury was inevitable in the case of Dylann Roof, who was on trial for killing nine black churchgoers during a Bible study in Charleston, S.C. But no one – fan or foe of capital punishment – should take comfort in how this came about; and an understanding of core Eighth Amendment values should make clear that the process and resulting sentence are unconstitutional. What went wrong first was the decision to permit Roof to self-represent. This flowed from a basic principle of autonomy – just as individuals have the right to the assistance of counsel, so too do they have the right to go it alone or, as some courts have put it, to be the captain of one’s ship. However, nearly a decade ago the U.S. Supreme Court held that, under the Sixth Amendment, “a right of self-representation at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel. . .” Placing an unskilled …

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Seven Steps to (Hearsay) Heaven

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The great jazz trumpeter Miles Davis recorded his classic Seven Steps to Heaven in 1963, with no explanation as to why this was the number of steps needed to ascend. He just laid down a seven beat, seven note structure and the music flew. Well, perhaps there are an equal number of steps to “hearsay heaven,” that place lawyers want and need to ascend to when proffering or confronting hearsay evidence. Yet virtually no attorney follows all of them, focusing either on admissibility or exclusion without regard to content, effective use or minimization should the proof be allowed. So this guide will offer the steps necessary to completely address hearsay in the courtroom. Step 1 – Is there an assertion by a human? The first reminder here is that hearsay comes from humans, so barking alerts by a drug dog, or computer printouts of telephone records are not covered by the rule. And what is an assertion? In effect, it is a factual declaration, a sentence that could be restated with the words “it is true …