Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 2
Hon. Harry Leinenweber
Proving Federal Crimes
By David Marshall Nissman, Corpus Juris Publishing Co., Conyers, Ga., (2001); 686 pp., $125. (For purchasing information, go online to www.corpusjurispublishing.com)
Reviewed by Judge Harry Leinenweber
Proving Federal Crimes is an update of a U.S. Department of Justice (DOJ) manual that was written to provide a trial book for the use of federal attorneys from the 1950s through the 1970s. (The DOJ manual, Proving Federal Crimes, has been out of print since 1980.) The current author, David Marshall Nissman, is a DOJ employee who received DOJ permission to create this commercial edition. The book is generally laid out in the chronological order of a federal prosecution, commencing with evidence-gathering advice-such as use of informants, search warrants, and wiretaps-and proceeding through the grand jury and into the trial court. It is the latter aspects that are most valuable to the practitioner.
When one uses a legal manual such as this, the reader does not just sit down and read it cover to cover like a novel. Its value lies in how quickly and accurately it can answer legal questions posed to it by the user. A book such as this, therefore, should be designed to answer questions posed to it by an attorney (or judge) who is hard-pressed for time, in a quick and easy manner. A technique that many lawyers (including this one) use in determining the value of such a book is to give it a real life test, i.e., pick out a very difficult legal question that you have recently faced and see if the book will yield the answer quickly, accurately, and with a usable citation. The test that I gave Proving Federal Crimes involved a Batson question that arose recently in a civil case over which I presided. An issue of fact to be decided by the jury in the case involved an interpretation of a racial insult uttered in the Spanish language by the plaintiff's boss. The jury was going to be asked to determine just how humiliating the insult was. During voir dire it was determined that Spanish was the first language of two prospective jurors. Would Batson be violated if either or both Spanish-speaking jurors were peremptorily challenged because they spoke Spanish? I found the answer to this question on the first try at the end of paragraph 25.07, which included a case citation. Thus, Proving Federal Crimes passed my test. Parenthetically, in my case neither side sought to excuse the two jurors, so the issue did not arise.
Although the book is intended for prosecutors and is an update of a Department of Justice manual that is 20 years out of print, I believe that defense attorneys (and judges) and especially those lawyers who only occasionally dabble in criminal law will want a copy. First, it's good to know what the prosecutor knows, and, second, almost every question that can come up during a criminal case-from indictment through post-trial proceedings-appears to be answered in a succinct manner complete with case citations.
The organization of the book is what really makes it helpful to the lawyer. It takes the reader directly through the criminal case process from the initial investigation through the indictment phase, the pretrial discovery phase, the trial phase, and on to post-trial. Although the average lawyer doesn't need the information on how to conduct a successful criminal investigation, the book is particularly helpful in laying out the law involving discovery, pleadings, pleas, and pretrial motions.
I found only two shortcomings in the book-first, its very limited amounts of material relating to trial evidence matters, and, second, its treatment of the U.S. Sentencing Guidelines.
As a judge who presides over many criminal trials, the most pressing issues usually involve pretrial in limine motions concerning Rule 404(b) material and trial evidence issues involving hearsay. These are not covered, presumably because the reader is expected to have an evidence manual at his or her side, but it would have been very helpful to have these issues covered-making the book a one-stop source of information.
The subject of the U.S. Sentencing Guidelines is a bit complex for the brief overview that the author gives it. It would probably be better to exclude the subject than provide the very limited coverage given it (without providing any case citations, I might add).
The only other criticism, a "nit" if you will, is the author's occasional use of "he/she," which I find annoying. I would recommend the use of neutral nouns or plural pronouns. All in all, these are very meager criticisms of what I consider to be an extremely well organized and useful book.
Hon. Harry Leinenweber is a United States district court judge, Northern District of Illinois, in Chicago.