For the Defense - Volume 3, Issue 1 - 2018 - 36

proper Kloiber instruction includes the following
language: "Where the opportunity for positive
identification is good and the witness is positive
in his identification and his identification is
not weakened by prior failure to identify, but
remains, even after cross-examination, positive
and unqualified, the testimony as to identification
need not be received with caution-indeed the
cases say that [a witness's] positive testimony as to
identity may be treated as the statement of a fact."
In Bey's case, the trial court substituted the bolded
language with the phrase, may not be received
with caution.
Trial counsel, who should have been alert to
the inappropriate substitution, was ineffective
for failing to object. Because Bey also established
prejudice, he was entitled to habeas relief. En route
to reaching this conclusion, the Bey Court reasoned
that trial court's improper substitution not only
misstated the law, but the different articulation
also constituted "the difference between telling
jurors that they must accept an identification and
telling them that they may accept the testimony
without reservation, but they need not do so."
Further, because the substitution essentially
mandated that the jury accept that Bey was the
shooter, the inaccurate instruction violated Bey's
due process rights.
Vickers v. Superintendent Graterford SCI, 858 F.3d
841 (3d Cir. 2017). Counsel was ineffective for failing
to ensure a knowing, voluntary, and intelligent waiver of
his client's right to a trial by jury; however, prejudice was
not presumed under the circumstances of the case, and,
thus, defendant was still required to establish prejudice.
In a general sense, Vickers' trial counsel
discussed Vickers' right to a trial by jury. But trial
counsel failed to ensure (1) that an on-the-record
waiver of a jury trial occurred and (2) that Vickers
understood all aspects of his right to a jury trial.
The District Court concluded that trial counsel
was thus ineffective, that Vickers also satisfied
Strickland's prejudice requirement, and, as such,
granted habeas relief. The Commonwealth
appealed.
The Circuit Court addressed, among other
things, whether trial counsel's failures gave rise
to structural error such that the prejudice prong
of Strickland may be presumed, or whether

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Vickers was required to establish prejudice. While
analyzing this question, the Vickers court first
agreed that trial counsel's failure to ensure a
proper jury trial waiver "fell below an objective
standard of reasonableness" and was not "within
the range of competence demanded of attorneys in
criminal cases." The Court also acknowledged that
when a criminal defendant has been completely
deprived of his right to a jury trial because neither
the trial court nor trial counsel informed him of the
right, the error may be structural, and prejudice
presumed. In Vickers's case, however, the record
showed that he was apprised of his right to a
jury trial (albeit in general terms); thus, he was
not completely denied his right to a jury trial.
Trial counsel's ineffectiveness was therefore not
structural error. Consequently, to be successful
on his ineffectiveness claim, Vickers was required
to demonstrate that there was a reasonable
probability that, but for counsel's failure to ensure
a proper waiver of the right to a trial by jury,
Vickers would have exercised that right. In this
case, however, trial counsel testified at the PCRA
hearing that, during his multiple consultations with
Vickers, he discussed the right to a jury trial as well
as specifically explained to Vickers the strategic
advantages he perceived in pursuing a bench trial.
As such, Vickers failed to satisfy the prejudice prong
of the Strickland analysis, and, thus, the Court of
Appeals reversed the District Court's order granting
habeas relief.
Lambert v. Warden Greene SCI, 861 F.3d 459 (3d
Cir. 2017). Counsel was ineffective for failing
to request a limiting instruction concerning a
Bruton issue; prejudice was established because
the prosecutor relied on the non-testifying codefendant's statement in closing argument.
In this murder case, Lambert was tried jointly
with Tillman, his non-testifying co-conspirator.
Tillman acknowledged being the killer, but argued
that his mental state prevented him from forming
the specific intent to kill required for first-degree
murder. In anticipation of trial, Tillman retained
an expert to support that defense, and, further,
Tillman made statements to the expert which
inculpated Lambert in the murder. Because Tillman
himself would not be subject to cross-examination,



Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018

Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
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For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
For the Defense - Volume 3, Issue 1 - 2018 - 27
For the Defense - Volume 3, Issue 1 - 2018 - 28
For the Defense - Volume 3, Issue 1 - 2018 - 29
For the Defense - Volume 3, Issue 1 - 2018 - 30
For the Defense - Volume 3, Issue 1 - 2018 - 31
For the Defense - Volume 3, Issue 1 - 2018 - 32
For the Defense - Volume 3, Issue 1 - 2018 - 33
For the Defense - Volume 3, Issue 1 - 2018 - 34
For the Defense - Volume 3, Issue 1 - 2018 - 35
For the Defense - Volume 3, Issue 1 - 2018 - 36
For the Defense - Volume 3, Issue 1 - 2018 - 37
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For the Defense - Volume 3, Issue 1 - 2018 - 56
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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