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Trial and Appellate Matters USABulletin November 1998 Volume 46, Number 5 Trial and Appellate Matters In This Issue Interview with Deputy Attorney General Eric H. Holder, Jr. Trial Considerations Involving Informants and Accomplice Witnesses Direct Examination Cross-Examination Effective Redirect Examination Tips on Closing Argument Attacking the Insanity Defense at Trial Ethical Issues for Appellate Attorneys Federal Trade Commission Resources From the Editor in Chief In this issue we continue with part two of our Trial Practice Series. July’s issue focused on pretrial topics. This issue reflects the natural progression to trial and appellate matters. It contains many basic trial practice subjects that should be helpful to the newest members of our federal prosecutor community. There is, however, useful information for all of us in this issue. This issue also features an interview with Deputy Attorney General Eric H. Holder, Jr. As a former DOJ trial lawyer and United States Attorney for the District of Columbia, he is no stranger to Assistant and United States Attorneys. He carries with him to the DAG’s office much more than these experiences. Those of us who have had the pleasure of hearing him speak publicly know him to be inspiring, thoughtful, and caring. Mr. Holder brings a great deal of humanity to the job. As always, we are indebted to you—our readers and our writers—for continuing to help the Bulletin evolve into an increasingly more useful publication. We are also interested in your reaction to the new 1998 Immigration Law Manual, which should now be in your district library (it's also part of the USABook library). Please send comments and suggestions to AVIC01(DNISSMAN) or AEXNAC01(JBOLEN) DAVID MARSHALL NISSMAN Published by Executive Office for United States Attorneys Washington, D.C. Donna A. Bucella, Director United States Attorneys’ Bulletin Staff, (803) 544-5155 David Marshall Nissman, Editor in Chief Jennifer E. Bolen, Managing Editor Susan Dye Bartley, Graphics Jared D. Smith, Law Clerk and Editor Send distribution address and quantity corrections to: Jennifer E. Bolen, National Advocacy Center, 1620 Pendleton Street, Columbia, S.C. 29201-3836 (803) 544-5155; fax: (803) 544-5110 Contents FEATURE INTERVIEW AND ARTICLES 2 Interview with Deputy Attorney General Eric H. Holder, Jr. 6 Trial Considerations Concerning Informant and Accomplice Witnesses 11 Direct Examination 20 Cross-Examination 27 Effective Redirect Examination 32 Tips on Closing Argument 39 Attacking the Insanity Defense at Trial 44 Ethical Issues for Appellate Attorneys 48 Using Federal Trade Commission Resources to Investigate and Prosecute Criminal Fraud COLUMNS 52 Appellate Corner Supreme Court Update 54 Attorney General Highlights Honors and Awards Attorney General’s Advisory Committee 56 United States Attorneys’ Offices/ Executive Office for United States Attorneys Resignations and Appointments EOUSA Staff Update Office of Legal Education 61 DOJ Highlights Office of Justice Programs APPENDICES Interview with Deputy Attorney General Eric H. Holder, Jr. Deputy Attorney General Holder was interviewed by Assistant United States Attorney (AUSA) David M. Nissman (DN), Editor in Chief, and Assistant United States Attorney Jennifer E. Bolen (JB), Managing Editor, United States Attorneys’ Bulletin. DN: What projects do you have on the horizon? EH: In addition to working to advance the Attorney General’s priorities, I hope to work on the issues of health care fraud, child abuse, and community prosecutions. DN: Does the Violent Crime initiative blur the lines of federalism by blending the roles of state, local, and federal law enforcement authorities? Deputy Attorney General Eric H. Holder, Jr. EH: There always has been, and should always be, a division of responsibility between the Federal Government and state and local law enforcement agencies; however, from time to time federal agents Eric H. Holder, Jr., was sworn in as the and prosecutors are called on to assist the states in Deputy Attorney General of the United States on certain types of prosecutions. For example, in the area July 18, 1997. Prior to becoming the Deputy Attorney of public corruption the state may not be able to General, Mr. Holder served as the United States handle such an investigation because the targets may Attorney for the District of Columbia. In that be employees of the same entity doing the investi- capacity, he created a new Domestic Violence Unit, gation. In that case, the Federal Government should implemented a community prosecution pilot project step in and provide investigative support and related designed to coordinate local and federal law resources. enforcement efforts, and developed “Operation By way of another example, the Federal Ceasefire,” an initiative to reduce violent crime by Government, because of its ability to coordinate getting guns out of the hands of criminals. Mr. Holder investigative information and resources, may be able served as an Associate Judge of the Superior Court of to identify problems which afflict a community and the District of Columbia for five years. He is a have roots elsewhere in the United States. A good graduate of the Columbia Law School and began his illustration of this is Los Angeles, where a part of the career as a lawyer through the Attorney General’s gang problem began that has now spread throughout Honors Program as a trial attorney in the the country. The Federal Government has the ability Department’s Public Integrity Section from 1976 to gather information regarding a certain gang and through 1988. provide it to state authorities to assist them in isolating and efficiently addressing the problem. In other words, the efforts of state law enforcement are often enhanced when partnered with the Federal NOVEMBER 1998 UNITED STATES ATTORNEYS’ BULLETIN 2 Government. Finally, I believe AUSAs should not example of an effective policy making group. The lose sight of the fact that no matter what our role in a general feeling is that the United States Attorneys’ criminal investigation, we should always be respectful offices are in the best position to decide what cases to of the state system. We have many bright lawyers in bring to court in a particular district. We should the Federal Government, but we certainly don’t have a develop and implement policies with the input of the monopoly on talent. agencies so that everyone knows where we stand when The cases that matter most to people are those it comes to making a decision about who to prosecute that get criminals off the streets for the longest and for what reason. After all, we are all charged with periods of time. Sometimes, you can only accomplish the responsibility of investigating and prosecuting this if you take them into federal court. If you take those cases that promote the President’s law cases that might not, at first glance, seem to be federal enforcement priorities and the Attorney General’s cases, but have a technical federal jurisdictional base, directives. you often can really help a community. JB: What was the focus of and what prompted the DN: Would it be fair to say that the investigation of idea of the Fifth District Community Prosecution Pilot militia-type organizations is another area where state Program? and federal law enforcement groups need to work together? EH: Community policing gets police officers out of the station house, out of their patrol cars, and actually EH: The issue of militia groups is another example of in the community and interacting with the people they an area where the Federal Government is uniquely serve. It is very effective. It seemed we could do qualified to help the states by providing necessary something similar with prosecutors. The United States information and assisting in the coordination of multi- Attorney’s office in D.C. has the responsibility of jurisdictional investigations. If groups are connected prosecuting local crimes as well as federal crimes. We on a national level, the Federal Government can be of decided to set up a program where we would task a great assistance to state prosecutors. number of prosecutors to prosecute the crimes in the Fifth District. They were responsible for everything DN: What suggestions do you have to offer regarding from misdemeanors to murders. They could use the the Department’s selection of targets for an federal and local courts. They were told that they had investigation? to interact with business owners, community leaders, and residents of the Fifth District to find out exactly EH: There have been some fundamental changes in what it is we could do to improve their quality of life. the Criminal Justice System because of the Sentencing Certain things were obvious—we have to Guidelines. Some say that the guidelines shift the prosecute violent crime, we have to prosecute sentencing power from the federal judges to the homicides. But it was also very interesting to find out federal prosecutors. The Department is responsible that one of the things the people in the district wanted for ensuring that prosecutors are consistently fair in us to do was improve the way the areas looked. Help the implementation of the Department’s prosecution them get rid of abandoned cars, board up abandoned policies. In addition, the Department is responsible for buildings, and close down crack houses. All of the ensuring sensitivity to the issue of balancing agency things which made the area look bad and breed crime. goals with prosecutive policies. Overall, in the That’s why we started. We took two prosecutors out selection of targets for criminal investigation a of our building and put them in the police station in prosecutor must be “critically fair” in his or her the Fifth District and that was their office. They were exercise of discretion. there to receive complaints and interact with people The best policies are the ones developed by the on a more direct basis.
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