Evidence

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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Mason v. U.S.: When Is A Prior Consistent Statement Admissible?

October 12, 2012 Evidence

I love appellate cases on evidentiary issues – which the D.C. Court of Appeals seems to be doing a lot lately — because they allow me to take out my handy-dandy McCormick on Evidence guide. According to McCormick, there are three things you need to know about the credibility of a witness:  bolstering, impeachment, and rehabilitation. [...]

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Longus v. U.S.: On Bias, Extrinsic Evidence, and the Collateral Fact Rule

October 6, 2012 Evidence

Bias is “the powerful distorting effect on human testimony of the witness’s emotions or feelings towards the parties or the witness’ self-interest in the outcome of the case.”  That is McCormick on Evidence, and it is the clearest, most accurate definition I have ever seen of what constitutes bias. McCormick continues: “[B]ias, or any acts, relationships, or [...]

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Bickering Over Basic Facts on Cross-Examination

July 27, 2012 Evidence

I like the government witnesses who fight with you on cross-examination, refusing to acknowledge even the most basic facts, like whether a particular street goes north-south or east-west.  It is as though any concession at all to the defense will lose the case for the government. Although I have never been a judge or sat [...]

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The “Fruit of the Leading Poisonous Question”

July 26, 2012 Evidence

We all know the phenomenon. The prosecutor asks a leading question directing the witness to exactly the answer the prosecutor wants. The court sustains our objection but the damage has already been done. The prosecutor re-phrases the question into a non-leading form, and the witness responds with the prosecutor’s desired response. Lenny Stamm calls it [...]

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