On the Crucible of Cross-Examination

April 11, 2013 Criminal Procedure

It happens perhaps most often in domestic violence cases that the complainant fails to show up on the morning of trial. The government would have you believe this is because the complainant fears for his/her safety, and this might sometimes be true. More often, it is because the complainant has reconsidered having the lover, spouse, [...]

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My Brush With Margaret Thatcher

April 8, 2013 Current Events

London. June 1990. I was low man on the U.S. delegation, probably the most junior person at the whole negotiation.  She was the most powerful woman on earth.  And yet when I walked toward the group she was standing with, surprised at how easy it was to approach her, she stepped back from the circle [...]

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Client “Don’t” List

April 5, 2013 Law Marketing/Networking

Here, courtesy of Gerry Beyer via Rob Robertson/Solosez, is a list of things not to do with clients. Don’t discount fees. Don’t let clients leave without an engagement letter. Don’t waste money on ineffective marketing. Don’t over-complicate things. Don’t make clients wait. Don’t ignore clients. Don’t try to impress your values onto your clients. Don’t [...]

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Young v. U.S.: The Confrontation Clause Is Still Alive In D.C.

April 4, 2013 Criminal Procedure

The U.S. Supreme Court has made such a mess of the Confrontation Clause line of cases that the D.C. Court of Appeals declared today that it really doesn’t know what to do. So it decided to do the right thing instead. In Robert Young v. United States, __ A.3d __ (D.C. 2013), the D.C. Court [...]

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Further Guidance on Significant Bodily Injury in Quintanilla v. U.S.

March 25, 2013 Criminal Procedure

The D.C. Court of Appeals took another step last week in defining what up until recently has been a poorly defined term:  the “significant bodily injury” that is required in order for the government to prove felony assault. Although the appellant in Fidel Quintanilla v. United States, __ A.3 __ (D.C. 2013), was convicted of [...]

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Haye v. U.S.: Unlawful Entry, Criminal Contempt, Double Jeopardy, and Prior Bad Acts

March 24, 2013 Criminal Procedure

When people talk about evidence being admitted at trial, they tend to think in terms of physical evidence:  guns, drugs, documents, fingerprints, DNA, that type of thing. Sometimes you need to remind them that oral testimony alone – someone getting up on the stand and testifying to what he or she saw – can also [...]

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A Lawyer’s Christmas Card

March 23, 2013 Humor

H/T Sam Glover

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Happy Birthday to Gideon: On the Arrogance of Public Defenders

March 19, 2013 Opinions/Cases

At the Defender Association of Philadelphia, the office policy in multi-defendant cases was to represent the defendant with the most serious charges, the worst fact pattern, and the worst legal posture. The other defendants would then be farmed out to court-appointed lawyers. Although nobody ever explained the rationale behind this policy to me, I assumed [...]

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D.C. Court of Appeals on “Furtive Gestures”

March 16, 2013 Criminal Procedure

Sometimes you need to go outside your own jurisdiction to find the right language in support of an argument.  For years I have been looking for language that captures the problems — the ambiguity and the over-inclusiveness – posed by use of the police officer’s favorite catch-all phrase, “furtive gestures.”  Today I found what is [...]

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Constructive Possession: Intent Required, Not Just Proximity and Knowledge

March 14, 2013 Criminal Procedure

That a controlled substance can be possessed constructively as well as actually is a court-made decision. As Judge Ruiz put it in her concurring opinion to Rivas v. United States, 783 A.2d 125 (D.C. 2005), the “doctrine of constructive possession is a judicially developed theory of liability designed to be a ‘proxy’ for actual possession.” [...]

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