Evidence

Bronx Prosecutor Castigated for Withholding Exculpatory Evidence

April 8, 2014 Criminal Procedure

According to the New York Daily News, a prosecutor in the Bronx failed to turn over exculpatory information to the defense in a rape case.  The evidence in question was an initial statement by the accuser that the sex had been consensual. The statement was not disclosed until after the defendant sat in jail for […]

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Refining the Definition of “Testimonial Evidence” under Crawford v. Washington

March 20, 2014 Evidence

You take a worthwhile social goal – protecting domestic partners from abuse – and then you contort the U.S. Constitution to achieve that goal. In the days of Ohio v. Roberts, 448 U.S. 56 (1980), the testimony came in as long as it was reliable.  There was no need for the complainant to appear when a […]

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The Duty to Disclose Includes the Duty to Preserve

February 12, 2014 Evidence

Police officers fail to preserve a critical piece of evidence, in this case a video recording taken of the incident in question.  The defendant moves for sanctions.  In opposing this motion, the government argues that the defendant’s arguments about what the recording contained is speculative.  The court agrees. Am I missing something here?  Without the […]

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Relevant = Material + Probative

October 26, 2013 Evidence

According to Federal Rule of Evidence 401, the test for relevance is whether the evidence has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In other words, says McCormick, there are two […]

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McCormick on Evidence: Do the Exclusionary Rules Deter Illegal Conduct?

April 25, 2013 Evidence

McCormick on Evidence first points out that you should avoid referring to  ”the exclusionary rule” in the singular: Discussions sometimes assume the existence of “the exclusionary rule,” suggesting that there is only one remedial requirement involved. This is unfortunate and misleading. Litigation and discussion is often dominated by considerations of the Supreme Court’s construction of […]

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Motive, Intent, Identity, and Absence of Mistake Under Drew

February 23, 2013 Evidence

One of the disadvantages to practicing law in D.C. is that the courts here do not use the Federal Rules of Evidence (FRE). You can’t just consult the text of a particular rule and then the case law that interprets that rule. Instead, you have to go directly to the case law or statute. This […]

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The Difference Between Direct and Circumstantial Evidence in D.C.

January 9, 2013 Evidence

Someone was asking me the other day about the difference between direct evidence and circumstantial evidence. The D.C. Criminal Jury Instructions provide a very helpful explanation: There are two types of evidence from which you can determine what the facts are in this case – direct evidence and circumstantial evidence. When a witness, such as […]

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What is a “Testimonial Statement” under Crawford v. Washington?

November 18, 2012 Evidence

You know you are in trouble the moment the judge refers to “that Supreme Court case on confrontation.”  He adds: “Robinson I think it is called.” The judge is a highly respected senior judge.   Although you realize he doesn’t do many criminal cases, you are still somewhat taken aback by his comment. Robinson?  Are you […]

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“Call My Accuser Before My Face . . .”

October 31, 2012 Evidence

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 It is always difficult to predict how a witness will perform under the “crucible of cross-examination.” A far safer bet is to bring […]

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Lazo v. U.S.: A Court’s Duty To Investigate a Jencks Act Violation

October 16, 2012 Criminal Procedure

The Jencks Act was a nasty little surprise when I began to practice in D.C. It was not that I didn’t appreciate getting the information. It was that I was used to getting this information much earlier in the process in Pennsylvania. The Jencks Act, 18 U.S.C § 3500, requires the prosecution to turn over to the defense […]

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