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Criminal Law

Statement ‘Immaterial’ in Brady Claim (access required)

A Norfolk Circuit Court grants the commonwealth’s motion to dismiss a habeas petition seeking to vacate defendant’s second degree murder conviction and revocation of his probation, based on a recently discovered alleged Brady violation. Petitioner alleges the commonwealth had a ...

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No Per Se Child Porn Sentence Enhancement (access required)

Although defendant used a file-sharing program accessible to others with images of child pornography, the district court erred in applying a five-level sentencing enhancement under USSG § 2G2.2(b)(3)(B) for a defendant who had “distributed” child pornography with the “expectation” of ...

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Defendant Not ‘Unavailable’ After Refusal to Testify (access required)

A defendant who invoked his Fifth Amendment right not to testify was not “unavailable” at his robbery trial, and the trial court erred in holding that defendant, as a hearsay declarant, was unavailable for purposes of applying the declaration-against-penal-interest exception ...

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