Legal Concepts/Principles

When it Comes To Self-Defense, it is the Immediacy of the Response Needed, Not the Immediacy of the Threat

December 7, 2014 Defenses to Criminal Charges

Words in the law do not always mean what their dictionary definitions say they mean. With respect to a prior consistent statement, for example, it is not really, as suggested by the rule, that such a statement must be offered to rebut a charge of “recent fabrication.”  Instead, it is “only that the alleged contrivance […]

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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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Jacobs v. United States: Narrowing the Definition of “Seizure” in D.C.

May 31, 2014 Legal Concepts/Principles

You are sitting in a legally parked car on the side of the road minding your own business when a police car pulls in directly behind you and activates its overhead lights. How many people would feel that they were perfectly free to drive away at this point?  Anybody?  Anybody at all? Because this is […]

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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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Why The Truth Doesn’t Matter At Trial

October 31, 2013 Legal Concepts/Principles

Over at Windy Pundit, Mark Draughn and Jeff Gamso engage in an interesting discussion about what constitutes a fact for the purposes of a criminal trial.  I have similar problems with the notion of truth. One of my favorite episodes from the old T.V. show “All In The Family” involved a situation in which an […]

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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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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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