Kyles v. Whitley and the right to attack the police investigation

Jay Leiderman
By: Jay Leiderman
February 03 2017

Prior to trial, petitioner believes, the court warned the defense attorneys something to the effect of: “This trial is not going to be about police and prosecutorial misconduct.”  The defense was on notice that their entire case plan of putting the system on trial was not to be presented to the jury.  Thus, petitioner was without the defense of consent and without the ability to put the police investigation on trial, his right under Kyles v. Whitley (1995) 514 U.S. 419, 445-449, where the U.S. Supreme Court said that the defense can attack the police in front of the jury by cross-examination and in closing argument about shoddy, slovenly, inadequate, or biased police investigation work.[1]

The district court committed plain error and abused its discretion by instructing the jury not to ‘grade’ the investigation

[1] See also United States v. Hanna (9th Cir. 1995) 55 F.3d 1456, and United States v. Sager (9th Cir. 2000) 227 F.3d 1138, 1145-1146, relying on Kyles.  In Sager the court said:  “[T]he district court committed plain error and abused its discretion by instructing the jury not to ‘grade’ the investigation.”  (Id. at 1145.).  “Details of the investigatory process potentially affected [the officer’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.”  (Id.)  To fail to allow this line of inquiry impinges on a defendant’s state and federal constitutional rights to confrontation and compulsory process.  (See Pointer v. Texas (1965) 380 U.S. 400, 403- 405.)

kyles v. whitley
Kyles v. Whitley allows for the introduction of evidence concerning a sloppy or shoddy police investigation

The defense has wide latitude in cross-examination of prosecution witnesses in a criminal case.  (People v. Ormes (1948) 88 Cal.App.2d 353, 359; People v. Watson (1956) 46 Cal.App.2d 818, 827.)  “We construe the [proper scope of cross-examination], at least ordinarily, that when a prosecution witness testifies to facts tending to establish the guilt of one criminally accused, that witness may be cross-examined on all relevant and material matters preceding, concurring with, or following the criminal event, within his knowledge and reasonably related to the issue of guilt or innocence.”  (In re Victor F. (1980) 112 Cal.App.3d 673, 682-683, citing Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 671.)


15 thoughts on “Kyles v. Whitley and the right to attack the police investigation

  1. All Genre: House, Club, Techno, Trance, Dance, Italo-Dance, Eurodance, Drum and Bass, Psychedelic, Goa, PsyTrance, Progressive House, Electro, Euro-House, Club-House, Hardtechno, Tech-House, Dutch House, Minimal, Deep-House, Nu-Disco, Hardstyle, Hardcore, Jumpstyle, Electronic, Alternative, Alternative Rock, Ambient, Avantgarde, Ballad, Bass, Beat, Black Metal,Blues, Classical, Chanson, Country, Dance Hall, Death Metal, Disco, Ethnic, Folk, Folk-Rock, Funk, Gangsta Rap, Gothic Rock,Hard Rock, Heavy Metal, Hip-Hop, Indie, Industrial, Instrumental, Jazz, Jungle, Pop, Rock, Metal, Latin, Lo-Fi, New Age, Noise, Oldies, Pop-Folk, Progressive Rock, Psychedelic Rock, Punk Rock, Rap, Reggae, R&B, Rock & Roll, Soul, Soundtrack, Speech, Synthpop, Thrash Metal, Top 40, Vocal etc.

  2. “Closer to the Heart” Rush
    “And the men who hold high places
    Must be the ones to start
    To mould a new reality
    Closer to the heart”
    “Truckin” Grateful Dead
    “But if you got a warrant, I guess youre gonna come in.”

  3. Tammy Wynette – “D-I-V-O-R-C-E” (“Our D-I-V-O-R-C-E becomes final today.”).

    Steely Dan – “Haitian Divorce” (“This is your Haitian divorce.”).

    Weird Al Yankovic – “Alimony” (“Lawyer’s callin‘ me on the telephony / Tryin‘ to squeeze some blood from a stony, stony.”)

    There aren’t too many songs about products liability. However, we did manage to come up with a few songs that at least sound like they might be about that type of litigation:

    Alice in Chains – “Angry Chair”

    Beck – “Broken Drum”

    Belle X1 – “The Ribs of A Broken Umbrella

    Built to Spill – “Broken Chairs”

    As for bands that just might have named themselves after products liability issues, what about Dangerous Toys?

    Keeping in mind their beat, the folks at the Drug and Device Law blog also came up with a list of songs about drugs. Well, as they note, way too many rock songs are about drugs, but there are some at least that sound like they might be about the the prescription medication industry:

    Candlebox – “Happy Pills”

    Eels – “Novocaine for the Soul”

    Entrance – “Valium Blues”

    Fugazi – “Give Me The Cure”

    Morphine – “Cure for Pain”

    Neil Young – “The Needle and the Damage Done”

    New York Dolls – “Pills”

    Pink Floyd – “Comfortably Numb”

    Ramones – “I Wanna Be Sedated”

    U2 – “Miracle Drug”

    The Velvet Underground – “I’m Waiting for the Man”

    The Verve – “The Drugs Don’t Work”

  4. My Lords, we make a claim today
    ‘Bout the making of a bargain
    The plaintiff read and did obey
    A poster’s specious jargon
    She used the ball but caught the flu
    And met the stipulation
    And from this court she claims her due
    In merited compensation.

    No prizes for guessing: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256. And if you know the music of Gilbert and Sullivan, you can sing it to the tune “When I Good Friends Was Called to the Bar” from Trial by Jury. (Gilbert had a brief and unsuccessful career as a barrister and legal themes abound in his lyrics).

  5. Constitutional Question
    “This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand.”

    1. “I’m bored” while we are doing something TOGETHER; and OFTEN when I am busy doing something else (usually the INternet is involved! )So you could tell your friend to do something that makes her feel connected to HERSELF. You spend your day doing things that make you feel connected to yourself, to your world, to LIFE. And as you said, where is there any room for boredom when you are so busy being connected with life?! Hugs!

  6. Article IV
    Section 1.

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    Section 2.

    The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

    A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

    No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

    Section 3.

    New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

    The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

    Section 4.

    The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

  7. Abuse of Discretion


    A standard of review used by appellate courts to review decisions of lower courts. A judgment will be termed an abuse of discretion if the adjudicator has failed to exercise sound, reasonable, and legal decision-making skills.

    Illustrative case law

    See, e.g. Wilton v. Seven Falls Co., 515 US 277 (1995) and General Electric Co. v. Joiner, 522 US 136 (1997).

  8. A suspected drug dealer who was arrested in Simi Valley Wednesday afternoon has been identified, authorities said.

    Jose Flores, 35, of Pacoima, was arrested following a vehicle pursuit, Simi Valley police said Thursday.

    Police were not able to identify him earlier because he did not have identification at the time of his arrest. Officers eventually learned his name using Flores’ fingerprints after he was booked into Ventura County jail.

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