Gearing Up For Trial?

A couple of recent decisions by the Court of Appeals shed light on some very practical aspects of a criminal trial practice.


Double Jeopardy and Child Pornography


In United States v. Ehle, No. 09-5389 (6th Cir. 2011) (Rogers, J., Batchelder, C.J., & Keith, J.) the Court makes clear that possession of child pornography is a lesser-included offense of receiving child pornography and the defendant therefore could not be convicted of both.


Wearing Jail Clothes at Trial


United States v. Williams, No. 09-5256 (6th Cir. 2011) (Martin & Stranch, JJ.; Thapar, D.J. (EDKy.), concurring), explains that, while a defendant cannot be forced to appear at trial in prison clothing, the court is not required to furnish alternate clothing for the defendant. While we are certainly cognizant of the current federal budgetary difficulties, this ruling calls to mind Anatold France's observation that "the Law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." You have a constitutional right to not appear at your trial in jail clothes if you (or your appointed lawyer) can afford to buy something else for you to wear, otherwise you have to hope you look good in orange.


Presence at Sentencing


Also in Williams, the Court held that a defendant's constitutional right to be present at sentencing is not satisfied by the use of video conferencing. The quality of the video connection is irrelevant. Rule 43, F.R.Cr.P., requires that the defendant be present and says nothing about video conferencing. There was no proof in this case that the defendant was persistently unruly enough to justify his exclusion.


Waiver of Presentence Report


Finally, the hapless Mr. Williams helps us to understand that while a district court may, under Rule 32(c), F.R.Cr.P., sentence a defendant without a presentence report, a defendant may not waive preparation of a presentence report. That is, it is up to the district court, not the defendant, to decide whether or not sentencing can proceed without having a PSR done. Here the district court did not make the requisite finding that it could proceed to sentencing without a PSR and was, therefore, error.