Motions should be tailored to your individual case. This is but a starter for those other motions relevant to your case facts –Charles M. Sevilla

  SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

I.  MOTION TO PERMIT COUNSEL TO REFER TO THIS BRIEF IN     PLACE OF LENGTHY, RECORD-MAKING OBJECTIONS.

     To make a proper constitutional objection, the state and federal courts have required precision and specificity by counsel.  In other words, simply objecting “hearsay,” will not preserve a confrontation issue, nor will objecting “352" or “unfair trial” preserve a due process issue.   

     Such imprecision can result in the sacrifice of a meritorious claim as happened in Duncan v. Henry (1995) 513 U.S. 364.   There, Mr. Henry was tried in a California court for alleged molesting a 5-year old child.   The prosecution was allowed to put on evidence of the parent of another child who testified that twenty years previous, Henry molested that child.  Henry’s lawyer  objected that the evidence should not come in and cited Evidence Code section 352, arguing the evidence was far more unduly prejudicial than relevant.   The parent testified and Henry was convicted.  On direct appeal, his lawyers argued that the evidence was irrelevant and inflammatory and that the resulting error resulted in a miscarriage of justice under the California Constitution (the standard for whether an error is harmless under the state constitution).  The Court of Appeal found error, but ruled it harmless. Henry then petitioned in federal district court, arguing that the error was not harmless and denied him federal due process of law.  The district court granted the petition, and the Court of Appeal for the Ninth Circuit affirmed the ruling.

     The U.S. Supreme Court summarily reversed the grant of relief stating that Mr. Henry never explicitly raised the federal due process issue in state court and thus did not "exhaust" his claim.   The court observed that the test for the state law claim was similar to, but not quite the same as the federal due process claim.  By not intoning the magic words “due process”  under the federal constitution, the issue was lost and Mr. Henry’s reversal of his felony conviction went with it.

     As the Supreme Court stated, similarity of claims is not enough to exhaust an issue in state court to permit its being raised in federal court. Justice Stevens’ dissent placed the impact of this ruling more bluntly: the case “tightens the pleading screws ... to hold that the exhaustion doctrine includes an exact labeling requirement.”  (Duncan v.  Henry (1995) 513 U.S. 364, at 368.)

     Of course, the federal rules apply equally to state review: no objection on appropriate grounds, no review on appeal because the issue has not been preserved.  (People v. Clark (1993) 5 Cal. 4th 950, 988 n. 13 (When a party does not raise an argument at trial, he may not do so on appeal); see also  In re Robbins (1998) 18 Cal. 4th 770; People v. Gordon (1990) 50 Cal. 3d 1223, 1254, n. 6 (a hearsay objection does not raise a federal confrontation question and thus the federal constitutional issue was waived by counsel’s incompetently made objection); People v. Raley (1992) 2 Cal.4th 870, 892 (defendant contended on appeal the court erred in admitting evidence and violated his federal constitutional rights, but because defendant objected only on statutory grounds at trial, the constitutional arguments are not cognizable on appeal.)

     Obviously, this is no small point.   Precious constitutional rights can be sacrificed for lack of a few syllables in stating an objection.  One thing is clear, the State will urge that trial counsel waived raising a claim and thus the defendant must be deemed procedurally barred from asserting –  “[t]ime and again in his briefs, he [the State Attorney General] claims that a contention by defendant is procedurally barred.” (People v. Gordon (1990) 50 Cal. 3d 1223, 1250.)

     A remedy.  To save this court’s time during this trial, to not frustrate the jury during needless record-making sidebars for objections, and to not unduly interrupt opposing counsel’s presentation of his or her case, present counsel requests permission to use abbreviated terminology in making his constitutional objections.  This same simplified technique is commonly used to make standard  evidentiary objections under the Evidence Code.  Thus, it is common to object by saying “352" in order to make an objection to evidence which has some relevance but which  outweighed by it’s prejudicial value. 

     By the same token, the defense requests to make his constitutional objections in the following manner. 

     Option #1: This is the simplest alternative: it would make every hearsay, relevance or “352" objection deemed to have been made under the due process clause of the 5th and 14th Amendments, and  under the confrontation clause of the 6th and 14th amendments.

     Option #2:  This is a “by the numbers” alternative.  Any 5th Amendment  due process objection would be made by simply by adding “5" to the evidentiary objection.  Sixth Amendment confrontation or right to present evidence issues would be made by adding “6" to  such claim protected by the 6th Amendment.  When objecting to unconstitutional argument by the prosecutor to the jury, counsel would object by saying “prosecution error.”[1] held that the claim of prosecutorial misconduct is more properly called prosecutorial “error”.

     The specifics of incorporated meaning of either option #1 or #2 are as follows:

L      “5" =’s FIFTH AMENDMENT DUE PROCESS

This objection encompasses the Fifth Amendment of the U.S. Constitution due process  guarantee of a fair trial as made available to the States through the 14^th Amendment.  Franklin v. Duncan, 70 F.3d 75 (9th Cir.  1995), adopting, 884 F.Supp. 1435, 1456 (N.D. Cal 1995)(denial of introduction of defense evidence to impeach complaining witness denied due process fair trial.).

L      “6" =’s SIXTH AMENDMENT CONFRONTATION & RIGHT TO PRESENT EVIDENCE IN DEFENSE OF THE ACCUSED

 This objection states that the defendant’s state and federal constitutional rights to confront witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution,  and under the similar, but separate and independent  California Constitutional protections provided by article one,  sections seven and fifteen. are violated.   U.S. v. Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993)(prosecution violates the "advocate-witness" rule by asserting “facts” not in evidence);  U.S. v. Prantil,  756 F.2d 759, 764 (9th Cir. 1985) (unfairly impugning defense counsel denies due process.); accord See U.S. v. Rodrigues, 159 F.3d 439, 451 (9th Cir. 1998).

L      “8" =’s EIGHTH AMENDMENT PROTECTION AGAINST CRUEL OR UNUSUAL PUNISHMENT  & THE STATE CONSTITUTIONAL PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

If the defendant moves under Romero to strike strikes, he is also raising the issue as a cruel or unusual constitutional claim. See Andrade v. Attorney General (9th Cir.  2001) 270 F.3d 743; Riggs v. California, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 789 (1999) (memorandum opinion by Justice Stevens, joined by Justices Souter and Ginsburg, respecting the denial of the petition for writ of certiorari).  

L      “PROSECUTION ERROR” MEANS THE FOLLOWING:

This objection includes the statement that the prosecutor’s  comment is irrelevant, inflammatory, and prejudicial.  The objection is grounded  in the defendant’s state and federal due process rights to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution, as well as my client’s state and federal constitutional right to confront witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution,  and under the similar, but separate and independent  California Constitutional protections provided by article one, sections seven and fifteen.  The error has "so infected the trial with unfairness as to make the resulting conviction a denial of due process." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) I also ask the court to assign this as misconduct,[2]  strike the offending comments, and admonish the jury to disregard it per People v. Bolton (1979) 23 Cal. 3d 208, 215-16, n. 5.[3]   If the court will not do that, I ask for a mistrial given the extremely prejudicial nature of the statements on my client’s fair trial rights.  (Berger  v. United States (1935) 295 U.S. 78.) 

II. COMPLAINING WITNESSES AND THE DEFENDANT SHOULD BE ADDRESSED BY THEIR NAMES AND NOT BY CONCLUSORY AND ARGUMENTATIVE  LABELS WHICH ASSUME FACTS NOT IN EVIDENCE AND UNDERMINE THE PRESUMPTION OF INNOCENCE.

     The question at this trial is whether the complaining witnesses were "victims" (the prosecution theory), or lying and/or mistaken  (the defense theory).  Neither the prosecutor, court personnel, nor the State’s witnesses should be allowed to characterize any complaining witnesses[4] during  the trial as "the victim" or “victims,” any more than the defense should called the defendant throughout the trail as “the framed victim.”  This prohibition would include voir dire, opening statement (which is not to be argumentative), and trial testimony.

      Common sense dictates that at least until the jury decides the case, the complaining witness remains an alleged victim, and not "the victim."  The "victim" characterization is argumentative and subverts the defendant’s presumption of innocence by the State’s repeated characterizing for the jury the complaining witness’s version as the correct one.  As such, it violates the defendant’s state and federal right under due process (as described above) to his presumption of innocence as protected by the due process clause of the 5th and 14th Amendments to the U.S. Constitution.  It also violates the defendant’s Sixth Amendment and 14th Amendment right to a jury determination of the facts, as well as the analog protection provided by the California Constitution.

     Prosecutorial statements are assumed to make an impression upon the minds of the jurors because the office "carries such weight with a jury that his statement of fact predicated on his knowledge, rather than on the evidence, constitute reversible error."  (People v. Purvis (1963) 60 Cal.2d 323, 341 [33 Cal.Rptr. 104].) Generally, a lawyer cannot use subterfuge to place before a jury matters which it cannot properly consider.  (People v. Daggett (1990) 225 Cal.App.3d 751, 759 [275 Cal.Rptr. 287].)  And, a prosecutor cannot use argument or questioning as a basis to “testify” before the jury.  (People v. Hill (1998) 17 Cal.4th 800, 827-28 [72 Cal.Rptr. 2d 656].) "When a lawyer asserts that something not in the record is true, he is, in effect, testifying.  He is telling the jury: `Look, I know a lot more about this case than you, so believe me when I tell you X is a fact.’   This is definitely improper."  (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1321.)

     In People v. Sanchez (1989) 208 Cal.App.3d 721, 739_740, the court rejected an appeal claim of constitutionally ineffective assistance of counsel for failure to assert this position at trial but his was because there were fewer mentions of the term by the prosecutor than defense, and because it was largely restricted to comments in voir dire.   However, even though the issue was not raised properly on appeal,  the court found that the use by the prosecutor was "possibly objectionable," but that there was no prejudice on the facts of the case. See also Godbey v. Oklahoma (1987) 731 P.2d 986 ("In the fifth instance the prosecutor referred to the complaining witness as a victim. During his objection, defense counsel asserted that the witness should be referred to as "alleged victim," which the trial court sustained.") 

     The witnesses in this case should be addressed by their proper given names.  It that is unsatisfactory for some reason, then the term “complaining witness” should be used.

III.  IT IS MISCONDUCT FOR THE PROSECUTION TO TELL THE JURY IT REPRESENTS THE “PEOPLE” IN A MANNER THAT IMPLIES THAT HE/SHE REPRESENTS THE JURORS AGAINST THE DEFENDANT.

     The prosecutor may, as some do, maintain that it is correct to tell the jury that he/she represents the  people of the state of California, and that “I am an advocate for them."   This statement improperly suggests to the jurors -- who are supposed to be impartial fact-finders -- that they are in fact aligned with the prosecutor against the defendant. 

     It is, of course, misconduct to suggest such a notion.  As the Supreme Court stated in People v. Eubanks (1996) 14 Cal.4th 580, 589-590), the role and interest of the prosecution in a criminal case is obviously not that of the jury and the phrase “the People” includes the defendant:

     The nature of the  impartiality required of the public prosecutor follows from the prosecutor's role as representative of the People as a body, rather than as individuals. "The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of 'The People' includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name." (Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const.L.Q. 537, 538-539.) Thus the district  attorney is expected to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual. (People v. Superior Court (Greer), supra, 19 Cal. 3d at p. 267.)   [Emphasis added.]

     Unlike the adversary role of the prosecutor, the domain of the judge and the jury is true disinterest and objectivity in a criminal case.  (Id. at 590.)  To suggest to jurors that the prosecutor’s role and interest and the jury’s role and interest are one and the same is a total distortion of the constitutional role each must play and undermines the defendant’s Fifth Amendment right to due process of law, the presumption of innocence, proof beyond a reasonable doubt, and the Sixth Amendment right to trial before an impartial jury.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADDING THE NECESSARY LEVEL OF CERTITUDE TO THE REASONABLE DOUBT INSTRUCTION TO PREVENT UNDERMINING DEFENDANT’S DUE PROCESS AND SIXTH AMENDMENT RIGHT TO A JURY DECISION BASED UPON SUFFICIENT EVIDENCE OF  EVIDENTIARY CERTAINTY.

     CALJIC 2.90 reads:

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.  This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt.  Rather, it is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (emphasis added.) 

     Appellate courts of this state see nothing erroneous, vague or misleading about CALJIC 2.90 in its current form either when viewed in isolation or with all instructions given.  Indeed, one court has stated a variant of this issue should be taken off the menus of appellate counsel. (People v.  Hearon (1999) 72 Cal. App. 4th 1285, 1287 (summarizing the rejections of it in the Courts of Appeal.) 

     Yet, the defect in CALJIC 2.90 exists and it is clear that the concept of reasonable doubt (the very high degree of probability required under the U.S. Constitution to sustain a conviction)  has been diluted below constitutional minimums, especially when all the probability based CALJIC instructions are added.    A standard of proof is an effort at instructing the jury on the degree of confidence our society thinks it should have in the correctness of its factual conclusions.   (Jackson v. Virginia (1979) 443 U.S. 307, 332.)

     When the concept of “moral certainty” was criticized by the U.S. Supreme Court as misleading, the court stated that what reasonable doubt meant was evidentiary certainty.  That forceful concept stands as the bulwark against the many CALJIC instructions emphasizing preponderance of evidence standards – e.g., jury should not believe the defendant to be more likely guilty than not guilty based solely on his arrest, charge and standing trial (CALJIC 1.00); if one interpretation of the evidence is reasonable and another unreasonable, the jury must accept the reasonable (CALJIC 2.01); jury may reject a witness’s testimony if false in part unless it finds the probability of truth favors the witness’s version. (CALJIC 2.21.2.)   Also, prosecutors in their closing argument typically argue for guilt as the “only reasonable” verdict. 

     Cage v. Louisiana (1990) 498 U.S. 39,[5] involved an unconstitutionally vague reasonable doubt definition focusing juror attention on moral beliefs  rather than whether the objective evidence offered was sufficient.  The United States Supreme Court held it unconstitutional because it defined reasonable doubt as "founded upon a real tangible substantial basis and not upon mere caprice and conjecture."  (Id., at 498 U.S. 40.)  Concluding that the challenged instruction equated a reasonable doubt with a "grave uncertainty," the high court concluded that this might have altered the constitutional standard for penal liability to one of "a moral certainty" that the defendant was guilty" (ibid); the high court reversed the conviction due to this basic structural defect.  

     Victor v. Nebraska (1994) 511 U.S. 1, upheld a conviction where the “moral certainty” version of CALJIC 2.90 was challenged.  The Court did not "countenance its use" (id. at 12, 22),  recognizing that "a jury might understand the phrase to mean something less than the very high level of probability required by the Constitution in criminal cases."  (Id.  at 14.)  The Court held, however, that the instruction was buttressed by the phrase "abiding conviction" so that the jury would know of the required high level of probability amounting to that "subjective state of near certitude of the guilt of the accused."  (Id. at 15; emphasis added.)[6]

     Where the California courts have erred is in interpreting language in Victor as approving an instruction which defines reasonable doubt only in terms of an abiding conviction.  (Victor,  at 14-15.)  In this passage, the Victor court cited Hopt v. Utah (1886) 120 U.S. 430, which had ruled approvingly of the language of an “abiding conviction,” but on in the context of the instruction given there.   The language of the instruction  in Hopt was tethered to a level of a very high probability concept; in other words, the instruction there required the lasting belief (abiding conviction)  in a decision involving a juror’s own important affairs.   Thus, the court said in Hopt  “it is difficult to conceive what amount of conviction would leave the mind of a juror free from a reasonable doubt, if it be not one which is so settled and fixed as to control his action in the more weighty and important matters relating to his own affairs.”  (Id. at 339.)  This is because “[i]f the evidence produced be of such a convincing character that they would unhesitatingly be governed by it in such weighty and important matters, they may be said to have no reasonable doubt....”  (Id. at 441.) 

     Indeed, Hopt referred to an English case as equivalent to the one approved  in Haupt’s case.  It told the jury to have that “level of certainty with which you should transact your own most important concerns in life.”  (Id. at 441.)  Hopt recognized and approved of “abiding conviction” language because it was tied to a level of certainty.   Thus, any notion that Victor or Hopt held that a mere “abiding conviction” definition of reasonable doubt would be constitutional is destroyed upon examination of the cases. Other courts have held such instructions rely only on an “abiding conviction” unconstitutional.  (See Patzwald v. U.S. (1898) 54 P. 458, 459-460 [7 Okla. 232]; Alexander v. City of Kingisher (1915) 151 P. 1197 [2 Okla.Crim. 600]; Williams v. State (1896) 73 Miss. 820 [18 So. 826].)

     Further, as noted in footnote 6 supra, just as the Victor court believed the term “moral certainty” meant something different (less demanding) in contemporary times than it did in 1850, the same may be said of an “abiding conviction.”[7]  Today, the best a linguist would opine is that the term means nothing more than a lasting belief.  But in what?   Matters found true by a preponderance of evidence, or clear and convincing evidence could sustain a lasting belief, but clearly would be unconstitutional if they were applied in a criminal case.

     Justice Mosk noted this defective phrase in his concurring opinion in People v. Brigham (1979) 25 Cal.3d 283, 299.  He asked, “what is an `abiding’ conviction?”  He observed that “it has long since fallen into disuse and is no longer part of our daily speech” and that it is a mere phrase connoting the “duration of the jury’s belief.”  (Ibid.)  Justice Mosk rightly stated that “the duration of a juror’s belief in guilty is essentially irrelevant.”  (Id. at 300.)  Adding the word “conviction” is not only of no help; it adds to the confusion because that word has a meaning of an adjudication of guilt.  (Id. at 300, n. 5.)

     The current instruction is so vague and low-probability oriented that jurors would interpret it as requiring only a preponderance of evidence to convict.   In fact, in the September/October 1999 magazine, The Sciences (p. 18), a survey of mid-level business executives was done to see what level of probability they interpreted California’s reasonable doubt instruction required.   The figures were alarming:

                             35% put the probability at over 90%

                             35% put the probability at 80-90%

                             18% put the probability at 70-80%

                             12% put the probability at 50-70%

     In other words, there was wide ranging disagreement and one-third of this “relatively sophisticated and homogeneous population of businesspeople” (id. at 20) thought that probabilities ranging for 50% to 80% were good enough to convict.  From reading the article, this instruction did not include the “satisfactory proof” clause which only further insures a low probability concept is communicated.  This is because CALJIC 2.90's definitional core of reasonable doubt is not just an abiding conviction.  It reduces the level of proof of guilt to that which is  “satisfactorily shown”  -- in other words, “satisfactory proof”  supporting a lasting belief.[8]  Preponderance of the evidence and clear and convincing evidence can generate lasting beliefs, but these reduced civil certainty standards are obviously unconstitutional if used in a criminal case. 

     Coupled with the other “reasonableness” CALJIC instructions, the overall result trivializes the reasonable doubt standard so that a jury has no clue of the required high level of "near certainty" (People v. Hall (1964) 62 Cal.2d 104, 112 (opinion by Chief Justice Traynor), or "evidentiary certainty" (Cage v. Louisiana, supra, at 489 U.S. 41), or a "subjective state of near certitude of the guilt of the accused"  (Victor supra at 15), or “utmost certainty” (In re Winship (1970) 397 U.S. 358, 364.)

      Without some level of near certitude in the instruction to give the lasting belief (abiding conviction) language meaning the resulting combination deflates the required certainty to convict and denies due process of law.  (But see  People v. Osband (1996) 13 Cal. 4th 622, stating these instructions do not confuse the jury on the proper standard; compare  People v. Nguyen (1995) 40 Cal. App. 4th 28 (improper argument for prosecutor to trivialize reasonable doubt standard with examples of everyday decisions people make).)  While appellate attacks to overturn convictions based upon the omission of a certainty standard have failed in this state, see, e.g., People v. Hearon, supra, the issue remains because a concept of evidentiary certainty is required to be given the jury and the instructions here, assessed in their entirety, do not come close to accurately demanding that level of certitude.  (Victor v. Nebraska, supra at 5 (taken as a whole, the instructions must correctly convey the concept of reasonable doubt.)

     This is structural error and will warrant reversal per se under Cage if a conviction results.  (Sullivan v. Louisiana (1993) 508 U.S. 275.)

     This court certainly has the power (and duty) to implement the U.S. Constitution’s guarantees.  Appellate decisions which refuse to reverse convictions do not forbid this court from implementing the required language of the U.S. Supreme Court in Cage and Victor.

     Nothing forbids it.  Penal Code § 1096, as amended in 1995, restates the CALJIC 2.90 instruction, but § 1096a also states only that “...no further instruction on the subject of the presumption of innocence or the definition of reasonable doubt need be given.”  (Emphasis added.)  That statutory language obviously does not mandate that no additional words can be given.   Given that this is the most fundamental of constitutional guarantees and that the CALJIC-Penal Code § 1096  defect can be remedied by simply adding a few words to the current defective instruction, it must be done.  Specifically, the instruction would just add the words "to an evidentiary certainty" to the current 2.90 following the words, "abiding conviction", so it would read, "abiding conviction to an evidentiary certainty in the truth of the charge." 

POSSIBLE OTHER INSTRUCTION [given facts of your case]:

AN INSTRUCTION SHOULD BE GIVE ON THE RELEVANCE OF THE STATE’S DEFICIENT INVESTIGATION TECHNIQUE

                   DEFENDANT’S PROPOSED INSTRUCTION        

     The defense has presented evidence that the prosecution’s investigation of this case has been negligent, or purposefully distorted, and not done in good faith.  For example, there has been testimony about _______________.

     Just as you may assess the product of the prosecution investigation done in good faith as having stronger credibility, you may also assess the lack of quality of the investigation as having lesser or no value.  Thus, with respect to the ________ evidence, the probative value of that evidence depends on the circumstances in which it was obtained, tested and maintained.  If those circumstances raise a reasonable belief of bad faith,  fraud or negligence,  you may consider that in determining the credibility of the witnesses and the weight, if any, that you chose to give the evidence. 

AUTHORITY: 

UNITED STATES v. SAGER, 227 F.3d 1138 (9th Cir. 2000) 

[*1145]   A. "Grading the Investigation" 

    Sager  argues that the court improperly limited his examination of postal investigator Morris and improperly instructed the jury to refrain from "grading" Morris's investigation of the theft and use of Post's credit card. "A federal judge has broad discretion in supervising trials, and his or her behavior during trial justifies reversal only if [he or she] abuses that discretion." United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988). A district court has discretion to comment on the evidence, as long as it makes clear that the jury must ultimately decide all questions of fact. See United States v. Sanchez-Lopez, 879 F.2d 541, 553 (9th Cir. 1989). Because  Sager  did not object to the district court's statements at issue here, review is under the highly deferential standard of plain error. See Johnson v. United States, 520 U.S. 461, 465-67, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997). Thus,  Sager  must demonstrate that the district court committed error that was plain, clear, or obvious, and that affected substantial rights. See id. at 467. Even if   Sager  can satisfy this heavy burden, we may, in our discretion, notice the error only if the error "'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting United States v. Olano , 507 U.S. 725, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993)) (alteration in original).

   We agree with  Sager  that the district court committed plain error and abused its discretion by instructing the jury not to "grade" the investigation. In one breath, the court made clear that the jury was to decide questions of fact, but in the other, the court muddled the issue by informing the jury that it could not consider possible defects in Morris's investigation. To tell the jury that it may assess the product of an investigation, but that it may not analyze the quality of the investigation that produced the product, illogically removes from the jury potentially relevant information. As the Supreme Court noted in Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995) "when . . . the probative force of evidence depends on the circumstances in which it was obtained and those circumstances raise a possibility of fraud, indications of conscientious police work will enhance probative force and slovenly work will diminish it." Id. at 446 n.15; see also id. at 442 n.13 (discussing the utility of attacking police investigations as "shoddy"); id. at 445-49; cf.  Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir. 1997); United States v. Hanna, 55 F.3d 1456, 1460 (9th Cir. 1995).

   Details of the investigatory process potentially affected Inspector Morris's credibility and, perhaps more importantly, the weight to be given to evidence produced by his investigation. Defense counsel may have been fishing for flaws, but it is obvious that he cast his bait in a promising pond. The district court limited  Sager's  [*1146] attorney from proceeding with an inquiry into the quantitative investigation at the point where the attorney had uncovered a highly damaging flaw in Inspector Morris's several accounts of Kim's statement. On the heels of this small victory, the district court erred (1) in curtailing as irrelevant further examination into the investigatory details, and (2) in informing the jury that it may not consider whether or not the investigation was flawed. In circumstances different from these, a court may properly decide that such a line of investigation is to be limited for some independent evidentiary reason, such as that the evidence would be cumulative. See, e.g., United States v. Miller, 874 F.2d 1255, 1266 (9th Cir. 1989) (rejecting attempted inquiry on cross-examination into technical violation of FBI's interrogation procedures manual where defendant had already "extensively explored the quality of the investigation and the possible bias that it may indicate," and further inquiry would have been of marginal probative value, outweighed by potential for confusing jury and wasting time). But here, the court's intervention was not proper.

   However,  Sager's  inquiry into Inspector Morris's investigation related primarily, if not exclusively, to Inspector Morris's investigation into  Sager's  alleged use of the Post credit card, the subject of Count Four of the indictment. The jury acquitted  Sager  on this Count. The other three counts covered the actual theft of mail and the possession of stolen mail, allegations sufficiently supported by the freestanding testimony of Brown and Arce, even assuming a thorough besmirching of Inspector Morris's own testimony and investigation.  Although we conclude that the district court committed plain error, any attack aimed at discrediting Inspector Morris or his investigation would not have affected the outcome of the proceedings. Thus, the error did not affect  Sager's  "substantial rights." See United States v. Baron, 94 F.3d 1312, 1318 (9th Cir. 1996). Moreover, the error did not "seriously affect the fairness, integrity, and public reputation of the proceedings." Id. at 1319. Consequently, we reject  Sager's  appeal on this issue.

U.S. v. Howell, 231  F.3d 615 (9th Cir. 2000)

   The government admits that it learned of the mistake in the police reports before trial and did not reveal the error to the defense. Nevertheless, the government argues that  Howell  is not entitled to a mistrial for three reasons:

(1) because  Howell  knew that the money was actually recovered from him, the government was under no obligation to disclose the information to the defense; (2) the correct information was inculpatory in that it suggested that  Howell committed the offense, and therefore the government was under no duty to disclose the information to the defense; and (3) even if the mistakes in the reports should have been disclosed,  Howell  was not sufficiently prejudiced to warrant a mistrial. We conclude[*23] that the government's first two arguments are baseless, but that the third has merit, and therefore will not disturb his conviction.

   The government's contention that it had no duty to disclose the mistake to the defense because  Howell  knew the truth and could have informed his counsel is wrong.  The availability of particular statements through the defendant himself does not negate the government's duty to disclose. See United States v. McElroy, 697 F.2d 459, 465 (2d Cir. 1982). Defendants often mistrust their counsel, and even defendants who cooperate with counsel cannot always remember all of the relevant facts or realize the legal importance of certain occurrences. See id.  Consequently, "defense counsel is entitled to plan his trial strategy on the basis of full disclosure by the government regardless of the defendant's knowledge or memory of the disclosed statements." Id. The government's characterization of the information withheld as exclusively inculpatory, not exculpatory, is flatly contradicted by Supreme Court precedent. In fact, it was both.  In Kyles v. Whitley, the Court explained that information which might "have raised opportunities to attack  . . . the thoroughness and even good faith of the investigation . . ." constitutes exculpatory, material evidence.  514 U.S. at 443; see also  Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986) ("A common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant and we may consider such evidence in assessing a possible Brady violation."). "When, for example, the probative force of evidence depends on the circumstances in which it was obtained and those circumstances raise the possibility of fraud, indications of conscientious police work will enhance probative force and slovenly work will diminish it."  Kyles, 514 U.S. at 446 n.15.

   In this case, the fact that not one, but two separate police reports contained an identical error as to a critical piece of evidence certainly raises the opportunity to attack the thoroughness, and even good faith, of the investigation. See  id. at 446. That the information withheld may seem inculpatory on its face in no way eliminates or diminishes the government's duty to disclose evidence of a flawed police investigation. [*25] See id. Furthermore, the mistakes constituted textbook examples of impeachment evidence as to where the officers found the money. Remarkably, the government, in its brief, recognizes the value to the defense of these mistakes, stating: The transposition of the co-defendant's names was a mistake by the officers. However, the only party hurt by this was the prosecution as it made the Government's agents and case appear to be haphazard and inconsistent as well as prone to errors. The mistake hurt the credibility of the Government's witnesses.

   Moreover, the government's practice in this case of knowingly allowing the defense to discover mistakes in police reports for the first time on cross-examination is incompatible with Rule 16 of the Federal Rules of Criminal Procedure. To quote the Advisory Committee's notes to Rule 16:

 Broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence.

Fed.  R. Crim. P. 16 Advisory Committee's Note.

 One of the objectives of  Rule 16 is to eliminate the idea that a criminal trial is a sporting contest in which the game of cat and mouse is acceptable.  When a prosecutor discovers material mistakes in police reports already turned over to the defense, the prosecutor must take appropriate steps promptly to notify the defense of the mistakes. This responsibility is part and parcel of Rule 16(c), which imposes upon the government a continuing duty to disclose. n3 Fed. R.

Crim. P. 16(c).

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   n3 We do note, however, that the prosecutor in this case candidly acknowledged her mistakes at oral argument. We have no reason to misbelieve her explanation that she saw this evidence at the time as exclusively inculpatory and therefore outside the scope of Brady.

   The government's final assertion - that Howell has not demonstrated sufficient prejudice to warrant a mistrial - has merit.  

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