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Criminal Law Section Newsletter | March 2014


Council Recap

The Criminal Law Section Council met on Wednesday, March 5, 2014.  Following are some of the highlights.

1.  Remote Access to MNCIS Records.  Judge Peter Cahill came to speak to the Council in his capacity as Chair of the Judicial Branch’s E-Court Steering Committee.  He provided a general update about the progress the courts are making to go paperless.  His primary focus, however, was to respond to the concerns that have been voiced by section members that some private attorneys doing criminal work do not have the same level of remote access to MNCIS records as public criminal attorneys such as prosecutors and public defenders. He explained that the Judicial Branch is taking a phased approach to remote access.  In the first phase, the branch is opening up access to all public records in the state at courthouse terminals.  Previously, if one used the public terminals at the courthouse, one could only access the records from that county.  To get to this phase, the court in each county had to certify that it could properly classify documents to a high degree of confidence that there would not be a risk of a nonpublic document being improperly labeled as public.  The next phase will involve remote access.  Currently, the Judicial Branch is grappling with issues surrounding document security and different potential approaches for handling that such as implementing user IDs and passwords and audit trails.  They are leaning toward allowing remote access to public documents in much the same manner that such documents can be accessed at the public terminal in the courthouse.  From there, the hope is that they will be able to implement further access to preconviction data to the attorneys of record with the appropriate use of security and auditing to guard against improper use.

2.  Criminal Bills in Legislative Session. The Council reviewed several bills pending in the Legislature that pertained to criminal law and criminal justice.  The Council voted to take a section only position in support of the Expungement bill (HF2576 / SF 2214).  The effect of the bill will be to permit the sealing of Executive as well as Judicial Branch records, and to expand the scope of offenses that may be considered by the court for expungement.  It was noted that the Collateral Consequences bill was also going to be heard that week (HF1845 / SF 1676).  Having already taken a section only position to support the bill, the Council authorized Brad Johnson to testify at the hearing on behalf of the section.

Tip and Traps
Advice and commentary on the practice of criminal law.

How do you handle an “off the record” hearing?

A number of judges, before a contested hearing or trial, or sometimes during trial when ruling on an objection, will call for a conference in chambers.  This conference occurs off the record. Below, a defense attorney offers his perspective on how to handle the conference.  Join the conversation.  What’s your perspective on how to handle an “off the record hearing?”  Share your views to this question on the Criminal Law Section listserve.

Alex De Marco is an attorney at Cavaleri & De Marco LLP specializing in criminal defense.

Alex De Marco: Young defense lawyers in particular need to recognize that this is a conversation among equals.  The Judge is simply a lawyer like you are, and you each have a particular job.  Your job is to present your challenges, your evidence, and your case and advocate for you client, and the Judge’s job is to rule on such motions and evidence in a manner that is memorialized and can be reviewed.   Even if the judge has told you in conference how he or she is going to rule, make the case on the record in court.  Clarify with the court on the record precisely what it is ruling and why.  Politely inquire of the judge as to his or her reasoning, and frame it with the appellate case law before you.  The process should only take a few moments, and it will help to preserve the issues for appeal.  This is especially true in jury trials.  You’re already beyond resolution at that point, and evidentiary rulings at trial are still the most commonly appealed issues.  Remember, without a record, nobody knows what actually happened.  Conferences in chambers can result in greater speed and efficiency, but your job is to ensure that this is not achieved at the expense of your client’s case and ability to appeal.