Legal Practice Tips |
A First RecourseReview of 'Proving Federal Crimes' |
By James M. Peters |
Proving Federal Crimes, by David Marshall Nissman; Corpus Juris Publishing Co., 411 Shadow Oak Drive, Conyers, Georgia, 2001, 686 pages, $120.00.
As
a federal prosecutor, I have long been familiar with Proving Federal Crimes
as one of the bibles of federal prosecution. Originally published by the
U.S. Department of Justice, it went through seven editions between 1954 and
1981, but time and changes in the law had rendered it passe - a dust collector
on the library shelf, a silent reminder of the way things used to be done.
Fortunately,
that has changed. Oregon State Bar member and former Lane County Deputy District
Attorney David Marshall Nissman has done a tremendous service by revising and
updating this venerable publication for the commercial market. Nissman borrows
from his quarter-century as a state and federal prosecutor to provide an up-to-date,
practical and easy-to-use reference guide that should be required reading for
every lawyer and agent working in the federal system. It is also valuable for
all who teach or want to learn about federal criminal law.
For
those looking for in-depth treatment of key issues, this is not your book. What
Nissman has produced is a reference guide that makes no pretense of being an
encyclopedia. Rather, it offers a concise analysis of those thorny issues that
raise their heads repeatedly in federal practice. The strength of this book
is that it presents these complex issues in a straightforward manner that will
be as useful to agents in the field as it is to attorneys in the courtroom.
Nissman
is the creative genius behind USABook, the Intranet site available only to federal
prosecutors. He is also a co-author of Beating the Insanity Defense (Lexington,
1980), The Prosecution Function (Lexington, 1982) and Law of Confessions
(Clark, Boardman, Callaghan, 1994). In Proving Federal Crimes he has
taken the best of the historical volume, updated it, and added sections on topics
the original authors could not have conceived of during their earlier revisions,
such as topics relating to technology.
In
the opening chapter, Nissman identifies the basic principles of a federal criminal
investigation, from analyzing theinitial
complaint, processing the crime scene and conducting lineups, to using fingerprint
and handwriting evidence and avoiding common pitfalls in financial and tax investigations.
Along the way, he updates the text with sections on DNA, digital evidence, tracing
e-mail, creating computer-animated illustrations and other cutting-edge techniques
that have emerged in the two decades since the volume was last published.
The
next 10 chapters focus on evidence gathering, summarizing the law on search
and seizure, electronic surveillance, confessions, overseas evidence, informants,
immunity and other critical issues. There is an important section addressing
special issues that arise when corporations or other business entities are suspected
of committing crimes here. To his credit, Nissman interrupts the discourse on
building a case with an important chapter on ethics, reminding prosecutors of
their responsibility to do justice and use mature discretion in wielding the
formidable power that is at their disposal.
Nissman
then turns to pre-trial issues, including federal jurisdiction, dual and successive
prosecutions, juvenile offenders, working with grand juries, detention, discovery,
plea bargaining and the rules of speedy trial. These areas are full of traps
for unwary practitioners. The book is helpful in navigating the demanding network
of federal rules, regulations and case law, and offers subtle insights that
would take years to assimilate on the job. Finally, he addresses trial issues:
jury selection, common defenses, sentencing and post conviction relief.
While
this book seems intended mainly for prosecutors and federal agents, I think
defense attorneys will find it a useful guide to ensuring that the government
dot's its 'i's' and crosses its 't's.' Particularly useful
for those who question the government's handling of cases are the many references
to the United States Attorney's Manual and the companion Criminal
Resource Manual, which are the Department of Justice's published guidelines
for initiating and prosecuting cases in federal court.
Nissman's
use of materials originally produced by the Department of Justice, but now in
the public domain, is especially effective. He has succeeded in blending the
work of many talented writers in a way that is both concise and comprehensive,
both historical and timely - all in a format both trial lawyers and agents in
the field will find easy to use. Doubtless this book will be the first place
to go for concise, up-to-date answers to specific questions about any number
of issues related federal criminal law.
As
a busy trial lawyer, I understand the need for an aid to the last-minute research
that inevitably accompanies a heavy trial schedule. One thing that sets this
volume apart from others is that it comes with a CD containing the entire text
of the book, which makes searching for those elusive answers to questions that
inevitably occur during trials much less stressful - for those who go to battle
armed with a laptop computer. The CD also contains more than a dozen difficult-to-find
public domain titles, including the Department of Justice's guidelines for searching
and seizing computers. These alone are worth the price of the book.
This
book has shortcomings, and one of them is what is missing. One of the most controversial
subjects facing federal prosecutors today is the applicability of state rules
of professional conduct to federal prosecutors and agents acting under their
supervision. Conflict between federal prosecutors and the defense bar over this
issue has been growing since the 1970s. The most recent chapter in this conflict
is the so-called McDade Amendment, which became effective on April 19, 1999,
and is codified at 28 U.S.C. § 530B. Under this statute, a government attorney
is subject to the rules of professional conduct of 'each State where such
attorney engages in that attorney's duties.' 28 U.S.C. § 530B(a).
Differences in the various states' ethics rules have caused considerable confusion
among federal prosecutors who are licensed in several states, or whose practice
includes multiple jurisdictions. Some fear that they may unwittingly be committing
ethics violations because of McDade, and it has had a chilling effect on some
legitimate investigations. This legislation was considered so important that
in the wake of its passage the Department of Justice established a new office,
the Professional Responsibility Advisory Office, to counsel federal prosecutors
on the statute's implications. While Nissman makes a passing reference McDade
in his chapter on corporations, this edition of Proving Federal Crimes
fails to give this important and timely issue the attention it deserves. Perhaps
subconsciously Nissman hopes Congress will come to its senses and repeal it.
Despite this oversight, Nissman has taken a classic reference book and has expanded, updated and improved on it. The result is certain to become the first recourse for concise, insightful analysis of the many legal, technical and logistical hurdles that go into proving federal crimes. +
ABOUT THE AUTHOR
The author is an assistant U.S. attorney in Boise, Idaho. More information about the book can be found on the publisher's website at www.corpusjurispublishing.com.
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