Reviewing the Unreviewable Judge: Federal Prosecution Appeals of Mid-Trial Evidentiary Rulings

• NCJ Number: 123356
• Journal: Yale Law Journal Volume: 99 Issue: 4 Dated: (January 1990) Pages: 905-924
• Author(s): S J Shapiro
• Date Published: 1990
• Length: 20 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

After examining the problem of the unreviewability of mid-trial judicial evidence rulings adverse to the prosecution in Federal courts, this note proposes a means to address the problem.

Abstract

Under present Federal statutes, the prosecution may only seek review from evidentiary rulings made before jeopardy has attached; consequently, any evidentiary ruling adverse to the prosecution made after the trial has begun is not appealable as an interlocutory ruling. The evidentiary matter can only be appealed after the verdict; however, since the prosecution would only appeal if the defendant is acquitted, appeal is precluded by the double jeopardy clause. The courts have addressed this problem in a number of ways. One circuit court has provided guidelines that specify which evidentiary issues must be decided before trial begins and which may be deferred. At least two district courts have developed a procedural device that converts unappealable mid-trial rulings into appealable pretrial ones through the grant of a mistrial. This note proposes that the problem be addressed by converting unappealable mid-trial suppression orders into appealable pretrial ones. 88 footnotes.