Burglary and robbery

AuthorTimothy E. Zerillo
Burglary and robbery cases can be quite similar. Often what separates a burglary from a robbery is
lack of use of a weapon or a violent act. They share many common traits and issues for the criminal
defense practitioner, so I discuss them in the same chapter. So that I don’t duplicate material, I discuss
particular issues where they most often appear in my practice. Eyewitness identif‌ication issues, for
example, appear in the robbery sub-section. That, of course, doesn’t mean that eyewitness identif‌ication
would not come into play in burglary cases or any number of other crimes.
A. Elements and Common Scenarios
§5:01 The Elements
§5:02 Dumb Kids
§5:03 The Seasoned Cat Burglar
B. Strategies and Tactics
§5:10 No Burglars’ Tools Found
§5:11 Dumb Kids: Get to Prosecutor Early
§5:12 FORM 5-10 Letter to Prosecutor: Dumb Kid Burglary Case
§5:13 Consent to Enter Residence
§5:14 Property Recovery Issues
§5:15 Alternative Suspects
C. Motions
§5:30 Motion to Dismiss as De Minimis
§5:31 FORM 5-20 De Minimis Motion to Dismiss
§5:32 Motion to Sever Defendants
§5:33 Bruton and Its Progeny
§5:34 FORM 5-30: Motion to Sever Defendants
§5:35 Motion to Sever Counts
§5:36 FORM 5-40 Motion to Sever Counts
D. Trial
1. Opening Statement
§5:50 My Approach
§5:51 Sample Opening Statement: “Dumb Kid” Defense
2. Cross-Examination
§5:60 Sample Cross-Examination of Off‌icer Regarding Burglar’s Tools
§5:61 Sample Cross-Examination of Owner Regarding Implied Consent to Enter Premises
3. Closing Argument
§5:70 My Approach
§5:71 Sample Closing Argument: Reasonable Doubt
Defending Specif‌ic Crimes 5-2
A. Elements and Common Scenarios
§5:80 The Elements
§5:81 Robbery on the Street
§5:82 Bank Robbery
§5:83 Convenience Store Robbery
§5:84 Pharmacy Robbery
B. Strategies and Tactics
1. Alibi
§5:90 Preserve Alibi Defenses with Proper Notice
§5:91 Verify Client’s Alibi before Raising the Defense
2. Eyewitnesses
§5:100 Always Consider Potential Identif‌ication Flaws
§5:101 Misidentif‌ication: Single Greatest Cause of Wrongful Conviction
§5:102 Stress as a Reason for Misidentif‌ication
§5:103 Cross-Racial Identif‌ication
§5:104 Reliabilit y of Identif‌ication
§5:105 Use of Suggestive Procedures
§5:106 Other Angles of At tack
3. When Drugs or Alcohol Are Involved
§5:120 Drug Treatment
C. Motions
§5:130 Motion to Strike Aliases
§5:131 FORM 5-50 Motion to Strike Aliases
§5:132 Motion to Suppress Identif‌ication
§5:133 FORM 5-60 Motion to Suppress and Dismiss
D. Trial Themes
§5:140 It Wasn’t Me
§5:141 It Was My Property To Begin With!
§5:142 I Needed to Stop a Crime
§5:143 Defenses That Generally Don’t Work But Might Be All You Have
E. Trial
§5:150 Jur y Selection
§5:151 Sample Opening Statement
§5:152 Sample Direct Examination of Alibi Witnesses
§5:153 Sample Cross-Examination of Cop Who Failed to Conduct Lineup or Photo Array
§5:154 Sample Cross-Examination of Cop on Photo Arrays vs. Line Ups
§5:155 Courtroom Exhibits
§5:156 FORM 4-70 Subpoena for Phone Records
§5:157 Sample Closing Argument

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