The “attorney-client privilege” protects confidential communications between a client and their attorney. As an exception to the general rule that all relevant facts should be available in the truth-seeking process, the purpose of the privilege is to encourage clients to be open and honest with their lawyers. The privilege belongs to the client, not the attorney. It can cover oral, …
The first question in any case in which the legality of a Fourth Amendment search is being challenged is when the seizure occurred. The next question then becomes: What did police officers know at the time of this seizure? If the facts known to them constituted either reasonable suspicion or probable cause, then the seizure was legal. If there was …
“High crime area.” Police officers invoke this phrase all the time. Like “furtive movements, “suspicious bulge” or “excited utterance, it is a legal sounding phrase they use to justify what might otherwise be an illegal detention. Police include it in their toolkit of phrases to throw out when drafting a police report or testifying on the stand. The phrase was …
Donald Trump claims, against all evidence, that something is broken. With great bluster, he breaks that something. He then uses the thing he broke to prove he was right to begin with. Given the stakes involved in any decision made by an American president, this is a particularly disturbing form of a self-fulfilling prophesy. ***** D.C. does not have the …
A defendant can consent to a Fourth Amendment search or seizure, thereby obviating the need for a warrant. A defendant can limit the scope of the consent – as in, “you can search the living room but not my bedroom.” A defendant can withdraw consent at any time. And the assertion of any of these rights cannot be used …
Absent a valid exception, “searches and seizures” without a warrant are presumptively unreasonable under the Fourth Amendment. As one exception to the warrant requirement, the “plain view” doctrine allows police officers to seize evidence without a warrant if (1) the officers are lawfully present in a location, (2) they observe the contraband in plain sight, and (3) the incriminating nature …
We have always loved extended goodbyes in my family – the more over the top, the better. We used to do what we eventually began to call the “Koehler goodbye” in front of our house on Hills Road in Amherst. It was best if you were still barefoot and in your night clothes, preferably in snow or rain, everyone …
The Victims of Violent Crime Fund (VVCF) in D.C. provides financial assistance to victims of violent crimes and their families. Funded primarily by court-ordered fees collected from people who are convicted of crimes in the District, the VVCF can reimburse people for funeral and burial expenses, medical and mental health care, lost wages and, for domestic violence victims, temporary shelter. …
The Proof of the Common Law is by witness and jury: let Cobham he here, let him speak it. Call my accuser before my face . . . — Sir Walter Raleigh Unable to confront his accuser at trial, Sir Walter Raleigh was convicted of treason in 1603. Outrage over the circumstances of his trial is believed to have played …
Hearsay is presumptively unreliable. That is why the law makes it so difficult to introduce hearsay into evidence. McCormick on Evidence § 244 refers to the “tale of a tale.” With the out-of-court witness not under oath and not subject to cross-examination, the major problem with this “story out of another man’s mouth” is that the party against whom …
According to the “independent justification” requirement, an order to leave public property must be given by a person with authority based on some established policy, rule or regulation. Otherwise, the government cannot prove the elements of the criminal offense of unlawful entry. *** Dr. Derek J. Morris was attempting to file a pro se petition for a writ of certiorari …
According to recent opinion issued by the D.C. Court of Appeals, Darrell Jones v. United States, __ A.3d __ (D.C. 2025), the defense must prove “incapacitating intoxication” in order to negate the mens rea element of a criminal offense. ***** “Voluntary intoxication” is generally not a viable defense to a criminal charge in Washington, D.C. As Joshua Dressler puts it …
[Update: D.C. Council resolved the problems described below through the “Peace DC Omnibus Emergency Amendment Act of 2025.”] There are major problems with D.C.’s new criminal record sealing/expungement statute. D.C. Code § 16-801 et. seq. For example, according to one reading of the statutory language, a person charged with a violent felony can seek immediate relief through a motion …
Jada Aristilde, one of my favorite courtroom clerks, has left the building. Ms. Aristilde leaned over to me in courtroom 314 earlier this week after my case was called to tell me that that was her last day. She will be devoting herself full time to her practice as a realtor. I have told this story before but I will …
Trying to read the jury can be a humbling experience. Many years ago, during a DUI trial in D.C., I was encouraged by a young man in the front row who, listening intently, seemed to agree with everything I said. “This is great,” I told my client. “I think we have at least one juror in our corner.” As it …
“No matter what.” These are chilling words to hear from any law enforcement official. After all, given the enormous stakes involved in a criminal prosecution, restraint has to be the operative word. It is thus particularly concerning when these words are uttered by the chief federal law enforcement official for the nation’s capital and when the words are targeted at …
Here is the recently released statement of Edward R. Martin, the new U.S. Attorney for the District of Columbia: “I want to thank President Trump for trusting me to re-establish law and order in Washington, D.C. It is the honor of my lifetime to accept his nomination as Interim U.S. Attorney for the District of Columbia. I pledge to …
Trials can be challenging. The stakes are high, and the pressure can be unrelenting. I have been feeling the strain. It was therefore particularly gratifying to win across-the-board acquittals in two back-to-back jury trials: three counts of “not guilty” in the first case and six counts of “not guilty” in the second. We argued self-defense in the first case and …
In order to extend a civil protection order (CPO) in Washington, D.C., the petitioner must show “good cause” that the protective order is still needed.
Ignorance used to be something to be ashamed of. Now we seem to celebrate it. It is anti-elitist. It proves our connection to the common man.
Q: . . . Officer. Based on the still shots I have just reviewed with you, do you see anywhere where Mr. Smith grabs his waist before he starts to run?
A: No.
A mistrial, the Court held, cannot be declared over defense objection unless “manifest necessity” requires it. A hung jury is one example of manifest necessary. The interruption of trials that were underway when the pandemic first hit was another.
To “hold or detain somebody in the context of the District’s kidnapping statute . . . means to detain them for a substantial period of time, so that the perpetrator could fairly be described as holding another captive like a hostage or a prisoner.”
We have learned that the same rules apply to everyone. It does not matter if you are a homeless person or the former president of the United States.
Although police officers are not required to read the Miranda rights verbatim, any editorializing risks confusing the suspect, thereby nullifying the warning.
As part of a plea agreement, the government typically requires the defendant to agree to a “proffer of facts,” a written statement of the evidence the government would have proven had the case gone to trial.
“Confidential location.” An officer utters these two words in a drug case, and the court automatically shuts down all related cross-examination.
Scheduled to take effect in January 2026, D.C.’s new criminal record sealing and expungement statute should make it much easier for people to move on from a criminal past.
It was hard to argue that there was insufficient evidence to convict Larson-Olson of unlawful entry when recordings showed defendant struggling with police.
When is a person seized for Fourth Amendment purposes? When is a piece of property abandoned such that there is no longer reasonable expectation of privacy?
Chief Judge Josey-Herring issued an order on March 15, 2024 that renewed the list of attorneys eligible to accept appointments under the Criminal Justice Act.
When I say how good Emma would be at the practice of law, her mother — my little sister — points out that Emma is really an academic at heart.
According to recent D.C. Court of Appeals decision, “possesses” stolen property refers to the continuing act of being in possession of the property, not the act of taking possession at the time of acquisition.
Experienced criminal defense attorneys have taught me to to look for “white spaces” in the government’s case.; that is, to focus on what is NOT there.
According to the “innocent possession of a firearm” defense in D.C., it is permissible to use in self-defense what might otherwise be an unlawful firearm.
Dressed nicely and sitting outside the lawyer’s lounge, the woman always appeared to be speaking on the phone about some weighty constitutional issue.
According to the 6th Amendment, the lawyer who accepts representation in a criminal case must affirmatively assist with the defense, thereby advancing it.
There never was an “elite strike force team.” Nor was there any significant election fraud. It is hard to believe that this second-rate lawyer once had the ear of the President.
I spend a lot of time on the Acela. So too do other people I have encountered over the last year or so: Tony Fauci, Matt Gaetz, Elise Stefanik and others.
Criminal defendants have a constitutional right to confront their accusers. In D.C., however, this right does not necessarily extend to recross examination.
We got spoiled during the pandemic with favorable plea offers. The government was trying to resolve as many cases as possible. Those times are over.
Judges love to keep us in suspense. Before announcing a verdict, they like to give us a detailed description of their reasoning. This can be excruciating.
All over the District, young black men are lifting their shirts to show their waists as the unmarked cars cruise past. This is because of the “jump out” cops.
Even if officers had legal basis for searching the car based on the fact that POCA is an arrestable offense, they still did not have authority to search box.
BY RESPONDENT’S COUNSEL Q: Okay. And at some point – Mr. Jones is from Russia, right? A: Yes. Q: And at some point he came back to the United States and he sought to re-initiate his romantic relationship with you, right? A: Yes. Q: And – and you were not interested in, in resuming that romantic relationship, right? A: Correct. …
A seasoned criminal defense lawyer was replaced by someone who had never before tried a criminal case. Not surprisingly, things did not go well for defendant.
Friend and former colleague Noah Clements died last night, just after 11:00 pm. He leaves behind his wife and their three children: Wiley, Eric, and Elise.
Rule 11 of the D.C. Rules of Criminal Procedure provides for a plea agreement in which both sides agree on the sentence that will be imposed.
Our goal as criminal defense attorneys is to turn opposing witnesses into unreliable narrators: Storytellers who should be punished for violating our trust.
For a threat to be unprotected by the First Amendment, the prosecution must prove that the defendant subjectively understood that the statement could be perceived as threatening.
In Mashaud v. Boone, the D.C. Court of Appeals limited the scope of unprotected speech under District’s stalking statute to threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.
From the Latin for “elsewhere,” an alibi defense is based on the physical impossibility of a defendant’s guilt: the defendant could not have committed the crime because he or she was somewhere else at that same time.
The defendant “poked” the complainant somewhere on the body after having been specifically admonished not to do so. Such an “offensive touching” constituted a criminal assault.
The court’s ability to hear a CPO matter in Washington, D.C. requires proof of an “intra-family offense” with sufficient connection to the District.
It is almost as if our former President intentionally peppers his unhinged and whiny tweets with spelling and grammatical errors. He wants to show his devoted followers he is just like they are.
Yes, Marjorie Taylor Greene, there is a two-tiered justice system in effect at the D.C. jail. Unlike their black and brown counterparts at the Central Detention Facility, the J6 defendants are being held in relative comfort at the Correctional Treatment Facility.
Retiring D.C. Superior Court Judge William Nooter was honored at a surprise farewell for him.
Here are the 2023 judicial assignments for the Criminal Division of D.C. Superior Court.
Sometimes you need to say things for no other reason than that the client will hear you.
Given my experience with county prosecutors in Philadelphia and Virginia, it was a welcome surprise to begin working with Assistant U.S. Attorneys in D.C.
I look forward to seeing him every morning. We do our little exchange, our private joke, and then we fist bump, and I continue onto the metro smiling and in much better spirits.
This is why we say goodbye. Letting go is what it comes to.
Sometimes you need to exercise your right to remain silent. Sometimes you should take your lawyer’s advice.
My wife has a history of agreeing to rent or buy the first place we visit whenever we are looking for a place to live. This is great, she says. We’ll take it.
Client expectations can fluctuate wildly, even within a given case. A big part of our job is to make sure these expectations are both informed and realistic.
According to the “Rule of Lenity,” a court should construe any ambiguity in the language of a criminal statute in favor of the defendant.
Five tips for representing indigent criminal defendants: (1) never push a plea, (2) don’t defend the system, (3) never contradict your client, (4) a light touch often works best, and (5) a thick skin will prevent burnout.
Although “claim of right” is a valid defense to robbery and other theft offenses, the defense fails when the defendant takes more than the property whose ownership is in question.
Here is the information you will need to log in by Webex video or phone to D.C. Superior Court Criminal Division courtrooms.
Here are the 2022 Judicial Assignments for the D.C. Superior Court Criminal Division
Under the ‘forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying.
Bias can be “a favorable or friendly feeling toward a party.” It can also be hostility toward someone, a motive to lie out of self-interest, and/or corruption.
Now that DFS has lost its accreditation, the government is looking for creative ways to prosecute drug possession cases, including amending the charges to attempted possession. There are equally creative ways to counter this strategy.
I won a motion to suppress in a drug case yesterday. The win was particularly gratifying in that it involved the notorious gun recovery unit (GRU) from the Metropolitan Police Department. One of the lead officers for the GRU testified for the government, and he was a difficult witness: He would not concede a thing. I usually begin with some innocuous questions. …
Police had the requisite legal basis – reasonable suspicion – to assume that one of four people present after gunshots were heard was the shooter.
People are, I believe, naturally contrarian. The question is how to use this phenomenon to your advantage at trial.
Although a court may take “judicial notice” of commonly known facts, the government must still prove every element of a criminal offense beyond a reasonable doubt.
The Criminal Division of D.C. Superior Court will expand in-person operations beginning on Tuesday, September 7.
The Zulu greeting “Sawubona” translated literally means “I see you.” Because it is important to be seen.
One man’s address book is another person’s ledger.
Reaching out to clients during the pandemic: Sometimes what I need to do is just listen.
Property seized by police during an arrest is often subject to civil forfeiture proceedings whether or not the person is ever convicted of a crime.
Representing the bad guys: Criminal defense lawyers sometimes make tradeoffs when we take on domestic violence cases
Trying a case — in this case, a CPO hearing — against an unrepresented party is always an experience.
Although we may take the most pride in our skills in the courtroom, clients tend to care far more about how well we communicate with them over the life of the case.
Telling someone that you will “slap” his/her “bitch ass” is threatening on its face. But criminal threats require the ability to follow through.
D.C.’s new law on civil protection orders (CPOs) redefines the category of people eligible for protection. It also extends coverage to animals, minors and victims of sex trafficking.
Parties who prevail in a CPO hearing can file a motion asking the court to assess legal fees against the other party. Respondents must prove “bad faith.”
D.C. Superior Court has again extended the judicial emergency, this time through May 10, 2021. The Court will expand some operations.
Everything you need to know (webpages, emails and phone numbers) to navigate your way around D.C. Superior Court’s Criminal Division during the pandemic.
Meet my new investigator Bob. I think you will like him. Because every defendant deserves a good defense.
I have to be careful — as I grow more experienced and continue to age –that I don’t turn into the stereotype of the cranky old criminal defense lawyer.
It is reversible error for the trial judge to prohibit the defendant from testifying that he was acting in self-defense when the court had already concluded that the arresting officer had not used excessive force.
Although a person can always revoke consent to a warrantless search, such a withdrawal of permission must be clearly and unequivocally communicated. So held the D.C. Court of Appeals in Ford v. United States.
There is a “buyer’s agent” defense in D.C. after all – at least with respect to drug distribution charges involving marijuana.
Because the grandmother is deaf, she does not hear the police officers assembling on the front porch of her rowhouse.
Chief Judge Anita Josey-Herring has issued an order extending the pandemic-related judicial emergency in D.C. Superior Court through March 31, 2021.
Kevin McCarthy wants unity? The ball is in his court. He should start by acknowledging that he was wrong to propogate the lie of a rigged election. He should start with an apology.
Donald Trump’s problems go beyond a lack of manners or character. He is also a sociopath. He does not learn. He has no shame. He is driven only by immediate self-interest.
Like “reading the white space” on a police report (that is, focusing on what is NOT included), the “missing evidence” jury instruction “essentially creates evidence from non-evidence.”