Burglary and robbery

• Author: Timothy E. Zerillo
• Pages: 175-202

BURGLARY

AND ROBBERY

5-1

CHAPTER 5

BURGLARY AND ROBBERY

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.

I. BURGLARY

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

BURGLARY

AND ROBBERY

Defending Specif‌ic Crimes 5-2

II. ROBBERY

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