Blog Jay Leiderman Law

Failure-to-Recall Instruction

At defendant’s competency trial, all the experts agreed that defendant appeared to suffer from impaired memory. Therefore, at the prosecution’s request, the jury was instructed: “The inability to recall facts or information does not in and of itself render a defendant incompetent to stand trial; however, it is a factor to be considered in determining whether a defendant is incompetent to stand trial.” Defendant contends the instruction was erroneous because it might have led the jury to disregard evidence of defendant’s inability to recollect as proof that he was incompetent. We think not.

The source of the instruction was People v. Amador (1988) 200 Cal.App.3d 1449.  In Amador, the court expressed doubts about defendant’s competence and appointed a psychologist to conduct a competency evaluation. The psychologist opined that defendant was incompetent because he suffered permanent amnesia regarding the events surrounding the offense. The trial court concluded that amnesia did not, in and of itself, render defendant legally incompetent to stand trial. On appeal, the Court of Appeal agreed. “The amnesic defendant is no worse off than the defendant who cannot remember where he was on a particular day because of the passage of time, or because he was drunk, drugged, unconscious or asleep at the time of the crime. Moreover, amnesia does not inhibit discussion between attorney and client as to tactical decisions concerning the trial. [Citation.] [¶] Amnesia as to the alleged offense does not totally incapacitate the defense and a defendant is still free to assist counsel in numerous other ways.” (Id. at p. 1454.)

Regarding the propriety of the instruction, the Attorney General argues that if, in Amador, complete and permanent amnesia was found insufficient, by itself, to render defendant incompetent to stand trial, a fortiori the mere inability to recall would not justify a finding of incompetence. Defendant contends that the instruction was incorrect because it may have led the jury to disregard evidence of failure to recall as proof of a mental disorder, like schizophrenia or posttraumatic stress disorder, that did render him incompetent.

To the extent that defendant is arguing that memory impairment, in and of itself, establishes a mental disorder that renders a defendant incompetent, we agree with Amador that such impairment does not, standing alone, establish incompetency. To the extent defendant is arguing that the instruction was inadequate because it did not specifically instruct the jury that impaired memory function could be evidence of a mental disorder that established incompetency, it was incumbent upon defendant to have requested elaboration or clarification of the instruction. (People v. Dunkle, supra, 36 Cal.4th at p. 894; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 122.)

In any event, there is no reasonable likelihood that a jury would have given the instruction the gloss placed on it by defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) The instruction did not tell the jury that the inability to recall cannot be considered in assessing competency, but only that it is not dispositive; indeed, the instruction states that the inability to recall “is a factor to be considered in determining whether a defendant is incompetent to stand trial.”
People v. Jablonski ( 2006) 37 Cal.4th 774

People v. Amador (1988) 200 Cal.App.3d 1449,5

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: or his homepage



This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website:

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“A situation in which the attorney’s own interests diverge from those of the client presents the same core problem presented in the multiple representation cases: the attorney’s fealty to the client is compromised. Therefore, courts have held that the presumption of prejudice set forth in Cuyler v. Sullivan 446 U.S. 335 (1980) applies as well to situations where the personal interests of the attorney and the interests of the client are in actual conflict…It is well-settled in this circuit that an actual conflict of interest exists when an attorney engages in wrongful conduct related to the charge for which the client is on trial.” United States v. Fulton (2nd Cir.1993) 5 F.3d 605, 609.

conflict of interest

A conflict of interest is one area where a defendant can allege he or she received ineffective assistance of counsel


SCOTUS Syllabus:

U.S. Supreme Court

Cuyler v. Sullivan, 446 U.S. 335 (1980)

Cuyler v. Sullivan

No. 78-1832

Argued February 20, 1980

Decided May 12, 1980

446 U.S. 335




Two privately retained lawyers represented respondent and two others charged with the same murders. Respondent, who was tried first, made no objection to the multiple representation. The defense rested at the close of the prosecutor’s case, and respondent was convicted. The two codefendants later were acquitted at separate trials. Respondent then sought collateral relief under Pennsylvania law, alleging that he had not received effective assistance of counsel because his lawyers represented conflicting interests. After a hearing at which both defense lawyers testified, the Pennsylvania Court of Common Pleas denied relief. The Pennsylvania Supreme Court affirmed, finding no multiple representation and concluding that the decision to rest the defense was a reasonable trial tactic. Respondent next sought habeas corpus relief in Federal District Court, but the court accepted the Pennsylvania Supreme Court’s conclusion that respondent’s lawyer did not represent the other defendants, and further concluded that respondent had adduced no evidence of a conflict of interest. The Court of Appeals for the Third Circuit reversed. It held that the participation of the two lawyers in all three trials established as a matter of law that both lawyers represented all three defendants, and that the possibility of conflict among the interests represented by these lawyers established a violation of respondent’s Sixth Amendment right to counsel.


1. The Court of Appeals did not exceed the proper scope of review when it rejected the Pennsylvania Supreme Court’s conclusion that the two lawyers had not undertaken multiple representation. The Pennsylvania court’s conclusion was a mixed determination of law and fact not covered by 28 U.S.C. § 2254(d), which provides that a state court’s determination after a hearing on the merits of a factual issue shall be presumed to be correct. Pp 446 U. S. 341-342.

2. A state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. If a defendant’s retained counsel does not provide the adequate legal assistance guaranteed by the Sixth Amendment, a

Page 446 U. S. 336

serious risk of injustice infects the trial itself. When the State obtains a conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty. Thus, there is no merit to petitioners’ claim that failings of retained counsel cannot provide the basis for federal habeas corpus relief. Pp. 446 U. S. 342-345.

3. Respondent is not entitled to federal habeas corpus relief upon showing that the state trial court failed to inquire into the potential for conflicts of interest and that his lawyers had a possible conflict of interests. Pp. 446 U. S. 345-350.

(a) The Sixth Amendment requires a state trial court to investigate timely objections to multiple representation. But unless the state trial court knows or reasonably should know that a particular conflict exists, the court itself need not initiate an inquiry into the propriety of multiple representation. Under the circumstances of this case, the Sixth Amendment imposed upon the trial court no affirmative duty to inquire. Pp. 446 U. S. 345-348.

(b) Unless the trial court fails to afford a defendant who objects to multiple representation an opportunity to show that potential conflicts impermissibly imperil his right to a fair trial, a reviewing court cannot presume that the possibility for conflict resulted in ineffective assistance of counsel. In such a case, a defendant must demonstrate that an actual conflict of interest adversely affected the adequacy of his representation. Pp. 446 U. S. 348-350.

(c) The possibility of a conflict of interest is insufficient to impugn a criminal conviction. In order to establish a violation of the Sixth Amendment, a defendant must show that an actual conflict of interest adversely affected his lawyer’s performance. P. 446 U. S. 350.

593 F.2d 512, vacated and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined, in Part III of which BRENNAN, J., joined, and in Parts I, II, and III of which MARSHALL, J., joined. BRENNAN, J., filed an opinion concurring in part and concurring in the result, post, p. 446 U. S. 350. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post p. 446 U. S. 354.

Page 446 U. S. 337

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“In certain Sixth Amendment contexts, prejudice is presumed….

. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests…., it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so,….Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.'”

Strickland v. Washington (1984) 466 U.S. 668, 692

“A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel’s loyalty to his or her client. (See Glasser v. United States (1942) 315 U.S. 60, 69–70, other citations omitted) It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.”

People v. Doolin (2009) 45 Cal.4th 390, 417.


“The right to counsel is the right -to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). “When a jurisdiction provides an appeal of right, due process also guarantees the assistance of counsel on appeal.” Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985). This right does not extend to “discretionary appeals,” Wainright v. Torna, 455 U.S. 586, 71 L.Ed.2d 475, 102 S.Ct. 1300 (1982), “petitions for certiorari,” Ross v. Moffitt, 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437 (1974), or “post-conviction proceedings,” Coleman v. Thompson, 501 U.S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991); Pennsylvannia v. Finley, 481 U.S. 551, 95 L.Ed.2d 539, 107 Sect. 1990 (1987).

The defendant has a right to expect that his attorney will use every skill, expend every energy, and tap every legitimate resource in exercise of independent professional judgment on behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778, 779 (9th Cir. 1994); U.S.C.A. Const. Amend 6. Counsel owes defendant duty of loyalty, unhindered by state or by counsel’s constitutionally deficient performance.

conflict of interest

A conflict of interest is one area where a defendant can allege he or she received ineffective assistance of counsel

Ineffectiveness is presumed when an actual conflict of interest is shown or an irreconcilable conflict between counsel and the defendant.

Examples of grounds for claim of ineffective assistance of counsel are as follows:

  • Counsel was ineffective in investigation, preparation or for another substantial reason
  • Counsel’s performance was deficient and prejudiced defendant
  • Counsel’s serious errors deprived defendant of fair trial
  • Counsel provided bad advice
  • Counsel had conflict of interest
  • Counsel and defendant had irreconcilable differences
  • Counsel was not prepared within requisite range of competence
  • Counsel’s performance fell below an objective standard of reasonableness
  • Counsel’s failure to investigate mitigating evidence
  • Counsel’s failure to investigate mitigating circumstances for sentencing
  • Counsel’s failure to object to factual errors in PSR and adequately prepare defendant for sentencing
  • Counsel’s failure to subject prosecution’s case to meaningful adversarial testing
  • Counsel’s failure to file timely motions
  • Counsel’s failure to advocate the defendant’s theory of the case
  • Counsel’s failure to negotiate results favorable to the defendant in plea negotiations
  • Counsel’s failure to be competent, prompt and diligent
  • Counsel’s failure to maintain adequate communications with defendant
  • Counsel’s absence through critical stages of the prosecution
  • Court’s failure to provide substitute counsel
  • Court’s failure to hold inquiry into claim of ineffective assistance of counsel
  • Representation so inadequate and deficient that it denies Sixth Amendment right
  • Representation fails to move to suppress evidence, conduct an adequate investigation, raise legal issues at trial, negotiate a plea agreement, introduce exculpatory evidence or file timely notice of appeal

In any case presenting a claim counsel’s assistance was constitutionally ineffective, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances and prevailing norms of practice as reflected in American Bar Association standards. Strickland, at 677.



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Tips to Avoid Having Your Computer Hijacked by Ransomware.

Ransomware is malicious software that cybercriminals use to keep your computer or computer files for ransom, demanding payment from you to get them back. Unfortunately, ransomware is an increasingly popular way for malware authors to extort money from both businesses and consumers. There is a variety of ransomware that can get on any machine, but as always, these techniques are either sprung from social engineering tactics, like sending a link that looks legitimate but is not, or from using software vulnerabilities to silently install on the computer of a victim.


When your computer is infected with ransomware you will often see something that looks like this.

Types of Ransomware

The first step in prevention is to understand ransomware, as you can be h by recognizing the different types of ransomware. Ransomware may range in severity from mildly unpleasant, to pretty damn scary to almost as serious to the “data hostage” as the Cold War or some such.

  • Scareware

Scareware includes fake security software and technical support scams. You would see a pop-up message claiming that bajillion pieces of malware were discovered and that the only way to get rid of them is to pay a legit-looking security company a reasonable sum of cash. If you do nothing, you will probably continue to be bombarded with pop-ups, but your files are essentially safe. A quick scan of your security software should be able to clear out these annoying little suckers. An authentic anti-virus or anti-malware program would never seek customers in this way.  That’s a good benchmark for determining what is and is not scareware.

  • Encrypting ransomware

This is the really horrid stuff. (ex: cryptolocker) These are the guys who tear up your files and encrypt them, demanding a ransom payment to decrypt and re-deliver… hence the terms “ransomware.”  The reason why this type of ransomware is so dangerous is because when cyber criminals get ahold of your files, it is nearly impossible to restore security or your data system so can get your files back to you. This is made even more difficult when one factors in the fact that a time limit is typically given to pay.  So not only is the data hostage trying to decrypt strong encryption, the hostage is doing so against a clock with a finite and often too short period of time to do anything of consequence to break the encryption.  Unless you pay the ransom you will find that – at the time set – you files will have vanished. And even if you do pay the ransom, there’s no assurance you can recover these files. Worse, sometimes the thieves raise the price to get the data back.  While it was misconstrued that the FBI said that they often advise people just pay the ransom, cyber security professionals were always clear that they advise otherwise. Indeed, the FBI quickly clarified their comments and has taken a strong position not to pay ransomware hostage-takers. Capitulating to ransomware criminals just opens the door for future attacks to you and others.  Indeed, once ransomware cyber-extortionists realize that you have improper security and are willing to pay, you are an ripe to be victimized again.

  • Screen Lockers

Advance to terror alert orange for these guys. When lock-screen ransomware gets on your computer, it means that you are completely frozen out of your PC. When starting your computer, a full-size window is often accompanied by an official-looking FBI and the US Department of Justice seal saying that illegal activity is detected on your computer and you have to pay a fine.

To regain control of your PC would require restoring an entire system in order. In  other words, rebuilding and reinstalling EVERYTHING.  If that does not work, try running a scan of a bootable CD or USB stick. The FBI would not freeze your computer or require the payment of illegal activities. If a site is suspected of being involved in piracy, child pornography or types of cyber crime, the FBI would go through the appropriate legal channels.  This means getting a court order and executing warrants.  They would not simply post a “pay a fine” notice.


The FBI does not agree that ransomware hostage fees should be paid. They also want the public to know that the FBI would never seize a site and put up a facepage asking for money for a fine

On the one hand, ransomware can be very scary – the encrypted files can be irreparably damaged, or the essence of the materials can be forever disrupted to the point that they are useless. But if you have prepared your system, it’s really nothing more than a nuisance. Here are a few tips that will help you on how to avoid having your computer hijack by ransomware:

Back up your data on a regular and frequent basis

The biggest thing that will defeat ransomware is a frequently updated backup. If you are attacked by ransomware a backup allows you to document that you previously started to lose files at a specific time – – for example this morning, and then one you have documented that you are the victim of a ransomware attack by filing a report at you can restore your system to a previous snapshot, or clean up your machine and restore your other lost documents from a backup, you can then finally be at ease. Remember that Crypto Locker also encrypts files on drives that are assigned to different areas of the computer. This also applies to external drives such as a USB stick, as well as network or cloud file storage that have been allocated a drive letter. Accordingly, what you need is a steady backup regime on an external drive or a backup service, which has no drive letter allocated to it or the drive is disconnected when it is not presently backing up your data.

Hidden file extensions

One way to identify Crypto Locker is that it often comes with the name in a file with the extension “.PDF.EXE” – which signifies that the ransomware is counting on the Windows default of hiding known file extensions. If you re-enable the ability to see the entire file extension, it may be easier to spot suspicious files.

Filter EXEs in email

If your gateway mail scanner has the ability to filter files by extension, you can quarantine emails with “.exe” and then deny those files the entry into your inbox. Additionally, emails sent using files that have two file extensions, as described above, the last an executable ( “* have to deny. * .exe “files in filter-speak) you can create a rule in your email client to filter those out and send them directly to the trash. If you must exchange executable files in your environment, in other words, if you have a need for .exe’s to be a necessary part of your email communication, you cannot deny emails wholesale just because they are “.exe” files.  One solution you can do with these files is zipping the files (password protected, of course) or via cloud services until you can verify the source of the file as being legitimate.

Select files that run from AppData / LocalAppData folders

You can create rules within Windows or Intrusion Prevention Software to use a special, remarkable behavior by Crypto Locker, which are enforceable in the App Data or Local App run prohibit data folders. If (for whatever reason) you use legitimate software that you know is set to not perform in the usual .exe Program Files area, but instead in the app data area, you will need to exclude from this rule.

Deactivate macros in Microsoft Office files

Most people are not aware that Microsoft Office files are like a file system within a file system, which has the ability to use a powerful scripting language to automate almost any action you can perform with a fully executable file includes. By deactivating macros in Office files, you can disable the use of this scripting language.

Malware authors often rely on that outdated software with known vulnerabilities that they can use to get silently on your system

Deactivate RDP

The Crypto Locker / Filecoder malware often access target machines using Remote Desktop Protocol (RDP), a Windows utility that permits others to access your desktop remotely. If you do not need to use RDP, you can deactivate RDP to protect your computer against Filecoder and other RDP exploits. For instructions to do this, go to the suitable Microsoft Knowledge below:

  • Windows XP
  • Windows Vista
  • Windows 7
  • Windows 8
  • Windows 10

Patch or Update your software

Malware authors often rely on that outdated software with known vulnerabilities that they can use to get silently on your system. It can significantly reduce incidences of intrusions if you make a habit of updating the software often.  This will reduce the potential for ransomware pain. Some vendors release security updates on a regular basis (Microsoft and Adobe both use the second Tuesday of the month), but there are often “out-of-band” or unplanned updates in case of emergency.  Enable automatic updates, if you can, or go directly to the software vendor’s website, to block harmful security risks such as malware from authors just discovered to disguise their creations.  Worse yet, sometimes ransomware authors disguise their installation .exe as software update notifications.


Ransomware can be anywhere from annoying to terrifying.  With the above tips, you are on your way to stymying would be hostage-takers and keeping your data secure.

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What is the Importance of Promptly Updating your Operating System / Software on iPhone?

The thing to remember about application updates is that they usually make relatively small changes. These changes are mostly bug fixes some plug security vulnerabilities or changes to enhance compatibility with a new version of the operating system or any other product connected thereto, including apps. Sometimes, there are minor changes to the features, sometimes an update is massive and vital.

As a side note, it is important to remember that password security is vital.

Getting the message that it is time to update your phone never stops being annoying for some users that are happy with the status quo. “My phone works fine just the way it is,” you think to yourself, and you put out the software update until another day.


Well, it happened again. Prior to releasing IOS 10, Apple just released iOS 9.5, so it’s time for iPhone owners to connect their phone to a Wi-Fi network and let it run for five minutes. 9.5 has crucial security updates designed to deal with new tools on the market from the recent NSA hack.  The update has a few useful new features, but there are other reasons why you need to update your phone and apps, in a timely manner. As annoying as they are, software updates are important, and we need to start getting into the habit of following through on these messages. Here’s why:

  • The main reason for the phone and computer up-to-date is security. Errors and vulnerabilities occur with any software system – and it’s just a matter of time before someone discovers them. Companies like Apple and Google, as well as important apps all have employees whose job it is to try to hack into their own product (Google even has an entire team of badass women white hat hackers do this). Their goal is to find and fix defects before malicious hackers can take advantage of them.
  • It’s like a constant cat-and-mouse game. Hopefully, the security researchers (the aforementioned white hat hackers) identify the issues first, but occasionally creative criminals or identifying a security hole first.
  • Even if an app update does not introduce many new features, and is just “improvements and bug fixes,” it’s still worth a download; it is possible that your phone could be hacked and an update will prevent your data from being shared with the world.
  • When major software update, it seems that there are always some users who get out in the cold with strange, unexplainable bugs. With Apple’s iOS, many users experienced intermittent Internet connection problems, including signal degradation and repeated requests for passwords. But the Wi-Fi update is not just about patches and plasters. It also brings Wi-Fi Calling Sprint customers, letting them participate in T-Mobile subscribers, as the few who can talk on the phone without eating away from their plan. Hopefully other carriers this feature in the future to allow for updates.
  • Apple’s iOS and OSX operating system, the software that makes your iPhone an iPhone and your Mac a Mac, had a coding error that basic security features protect your data from hackers compromised.
  • To ensure that you download the latest security updates for the latest operating system and other software, disable automatic updates. “Many software programs will automatically connect and update to defend against known risks.
  • 11(c)(1)(C)

    The digital revolution is the most important jump in technology since the work that went into the moon landing

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