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

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… Read More

Judicial Notice: The Difference Between “Legislative” and “Adjudicative” Facts

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… Read More

Wayne LaFave on “Motive”

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… Read More

Actus Non Facit Reum Nisi Mens Sit Rea

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… Read More

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

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… Read More

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

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… Read More

The Duty to Disclose Includes the Duty to Preserve

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… Read More

Why The Truth Doesn’t Matter At Trial

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… Read More

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

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… Read More

On the Crucible of Cross-Examination

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… Read More