“Observe and Report”

by Jamison Koehler on July 24, 2014

This is what the witness’ duty is.  It is not to “protect and serve” like a regular police officer.  Instead, it is to “observe and report.”

The judge isn’t sure she heard this right, and she asks him to repeat it.  He doesn’t flinch.  He obliges.

I have some fun with this on cross.

So you don’t carry a gun?  No.

You don’t carry handcuffs?  No.

You have no authority to arrest anyone?  No, he answers, but we can detain someone.

You can detain someone?  Yes, if we get permission first.

Permission first?  You mean from like a real police officer?  Still no reaction from the witness:  Yes, he answers.  From a police officer.  Or from a special police officer.

I see.  And the kids at this apartment complex often make fun of you for not being a real police officer? Yes. I am a security officer, not a police officer.

Martin Lawrence is a wannabe cop in the movie “National Security.”  He and other recruits are handed a whistle and a quarter during training.  You are to call for police, they are told, if anything real actually happens.

This sounds a lot like “observe and report.”  I resist the urge to ask the witness whether or not he has ever seen the movie.

The witness, as it turns out, is not protected under the Assault on a Police Officer statute, and the judge grants my motion for judgment of acquittal on that charge.  I have two witnesses in the hallway who are no longer of any use to me.

I see the prosecutor in the hallway after the trial.  This is the second trial in a week in which we have opposed each other.  We have been polite with one another but formal.   It turns out that he has seen the movie too.  (“I can’t believe you just asked me that.”)  The ice has been broken.  It feels really good to laugh.


With the Marijuana Possession Decriminalization Amendment Act of 2014 having gone into effect yesterday, the Washington Post did an article today discussing the fate of the last few people who were arrested under the old law.  (From now on, possession or transfer without payment of one ounce or less of marijuana will be a civil infraction, not punishable as a criminal offense.)  It was like that question from back in the 1970’s:  Who wants to be the last American killed in Vietnam?

But I wouldn’t worry too much about those last people arrested.  I am willing to bet that those last arrests will go the same way as so many marijuana cases even before the new law went into effect:  The government will quietly “no paper” – i.e., dismiss – the charges on the day of the person’s arraignment.


The DUI Defense Lawyers Association: A New Challenge to the NCDD

July 16, 2014 DUI and Driving Offenses

I am clueless about the politics. But you know this has to be a really, really bad thing for the National College for DUI Defense (NCDD). Justin McShane hinted that something was up at the most recent meeting of the NCDD in New Orleans when he announced that his presentation that day would be his […]

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Judicial Notice: The Difference Between “Legislative” and “Adjudicative” Facts

July 14, 2014 Evidence

A court accepts a well-known and indisputable fact without taking the time and trouble of requiring a party to prove it.  What could be more straightforward, more commonsensical, than that?  As McCormick puts it, the “oldest and plainest ground for judicial notice is that the fact is so commonly known in the community as to […]

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Wayne LaFave on “Motive”

July 13, 2014 Legal Concepts/Principles

Motive.  It is really big on TV shows.  At the same time, if you listen to Wayne LaFave, it is completely irrelevant when it comes to substantive criminal law:  The government is not required to prove motive in order to secure a conviction. The New Oxford American dictionary defines “motive” as “a reason for doing […]

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Actus Non Facit Reum Nisi Mens Sit Rea

July 13, 2014 Legal Concepts/Principles

Translated into English, actus no facit reum nisi mens sit rea means that “an act does not make one guilty unless his mind is guilty.” In other words, it is not enough for the government to prove a physical part of a crime; that is, an act or an omission to act.  The government must […]

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Loser Walking

July 5, 2014 Miscellaneous

Guest Post By Raymond Koehler I have written for my brother’s law blog before and received a nice response. In fact, Jamie said my post got more responses than any of his own posts. One thing you must know about Jamie, or, to use his more professional sounding name, “Jamison,” is that he is the […]

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These Hours Undo Me

July 3, 2014 Miscellaneous

After dinner, my brother joins the younger generation in a game of Ultimate Frisbee. I opt to sit out of the game, joining our mother on the sidelines instead. My brother used to be the organizer. There was not a game played at Cape Cod – a game of Scrabble or Kick the Can or […]

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Pinning Down An Elusive Cop On Cross-Examination

June 24, 2014 Trial Advocacy

Q:            You testified on direct that the defendant approached you. A:            Define when you say approach. Q:            I am sorry? A:            Define what you mean when you say approach. Q:            Officer.  Unless I am mistaken, it was you who used the word approach.  On direct.  Am I wrong about that? A:            No.  No, I guess, […]

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The Government Wins Every Time

June 9, 2014 Juveniles

Years ago I went to the Playland amusement park in Rye, New York with some friends. We were walking by the “Guess Your Age or Weight” booth when I noticed that the proprietor had stepped out, temporarily turning the business over to his daughter. This will be easy, I thought. There is no way this […]

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