Criminal Procedure

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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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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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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Lecture After Injury

March 7, 2013 Criminal Procedure

The government dismisses the charges on the morning of trial, but this doesn’t stop the judge from lecturing my client:  “I hope you have learned your lesson from this,” she tells him. Although it may not be the lesson the judge was referring to, my client did learn at least three things from this experience: [...]

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Dorsey v. U.S.: “I Want to Speak to a Lawyer”

February 7, 2013 Criminal Procedure

Although you might think that invoking your right to remain silent and invoking your right to a lawyer would have the same legal effect, you would be mistaken.  In fact, if ever forced to choose, you should always ask for a lawyer. Police can resume interrogation after a period of time when you invoke your [...]

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Police Officers Are Not Superhuman

January 6, 2013 Criminal Procedure

In some cases, you can understand the tremendous amount of deference that is accorded by courts to a police officer’s experience.  Only an experienced officer, for example, might know that a particular type of package is used to deliver drugs in a neighborhood. Other times you have to question this deference. Police officers do not [...]

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Michigan v. Long Is Ripe for Reversal

January 4, 2013 Criminal Procedure

Courts seem to be bending over backwards to avoid basing decisions on Arizona v. Gant. In an opinion issued last month by the D.C. Court of Appeals, for example, the defendant was pulled over for a minor traffic offense. The defendant was ordered out of the van and frisked, with the officer finding no weapons. The [...]

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