Yes. If a witness testifying at trial made a prior statement that a party would like to introduce and that statement was intended as an assertion and is now being offered as substantive evidence to prove the truth of the matter, then the statement would still be hearsay. It is immaterial whether or not the witness is present in court to be cross-examined with respect to the earlier statement.
Whether or not an out-of-court statement is hearsay depends on the purpose for which it is offered. If it is offered to prove the truth of the matter, it is hearsay. If offered only to impeach (i.e., discredit) a witness, then it is by definition not hearsay.
A deposition is a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for discovery purposes or for later use in court. As such, it would appear to be quintessential hearsay (i.e., an out-of-court declaration that is asserted for the truth of the matter) and would only be admissible if (1) it were offered for a non-hearsay purpose or (2) it satisfied the “prior recorded testimony” or some other exception to the hearsay rule.
Whether a receipt constitutes hearsay would depend on the purpose for which it is being offered. If it is being used to prove the value of an item, it would be hearsay.
I have worked with this particular court-appointed client now on a number of cases, and I guess he is beginning to feel more comfortable with me. “Give it to me straight, Mr. Koehler,” he says to me over the phone. “You get paid more money if I cop to a plea on this case, don’t you?”
There might circumstances in which a person’s silence could be interpreted to communicate something. For example, silence in response to the traditional challenge “speak now or forever hold your peace” during a wedding ceremony could be interpreted to communicate assent. If offered to prove that the “declarant” endorsed the union, it could constitute hearsay, thereby requiring the proponent of the evidence to introduce it through an exception to the hearsay rule.
Conceivably, yes. Hearsay is as an out-of-court assertion that is offered to prove the truth of the matter asserted. If the evidence in question satisfies all three conditions (that is, it is out-of-court, it is an assertion, and it is offered for its truth), then it would be hearsay and could only be admitted through an exception to the hearsay rule.
“Past recollection recorded” is frequently confused with the “refreshing the recollection” of a witness. The former is an exception to the hearsay rule. The latter isn’t. In both cases, a witness is presented with something after failing to recollect a material event. In the case of refreshing recollection, that something can be virtually anything: “a line from Kipling or the dolorous …
Here is what every lawyer appearing in D.C. Superior Court should know about handling an arraignment for a U.S. citation.
I used to be King of Google for criminal defense in D.C. Traffic to my site was both wide (many visitors each day) and deep (visitors would stay for a long time, clicking on multiple pages each visit and then dwelling on them). More importantly, my site ranked number #1 for a number of important search terms that could lead to potential business: “simple assault dc,” prostitution solicitation dc,” “destruction of property dc,” “theft II dc,” “unlawful entry dc,” “expungement/sealing of criminal records dc,” and so on.
Q. Officer. When you arrived, the altercation was still on-going, right?
A. That’s right.
Q. So you have no idea how it started?
A. No, I don’t.
Q. When you arrived, my client had a bottle in her hand?
A. Correct.
Q. And he had a piece of wood in his hand, right?
Felony 1 Calendar Judge Ronna Beck, Room 316 Judge Danya Dayson, Room 318 Judge Craig Iscoe, Room 313 Judge Milton Lee, Room 302 Judge Juliet McKenna, Room 215 Felony 2 Calendar Judge Steven Berk, Room 321 Judge Kimberley Knowles, Room 319 Judge Michael O’Keefe, Room 310 Judge Robert Okun, Room 216 Judge Michael Ryan, Room 217 Judge Robert Salerno, Room …
I like most of the police officers I work with. Access to body worn camera footage has also given me greater respect for what they do: I have seen them deal with volatile and potentially dangerous situations with sensitivity and respect. But this notion of police officers as neutral, disinterested third party observers who testify impartially on behalf of the government is ridiculous. The officers do pick a side – and it is the government’s.
Q: If you lost your body worn camera, you could get written up for that, right? A: Yeah, if you lost it, yes. But in this situation, it was knocked off or fell off, whatever have you – Q: Right. A: I mean, it’s not exactly my fault in this situation but I still need to report the camera is …
I sit across from a colleague in her office at the Public Defender Service in D.C. A list of names from the jail is on her desk. Some of the names have been crossed out. Others have been highlighted or checked. “Names are naked things,” my father once wrote. Lists are “an alphabet not intimate like words.” Our flesh moves …
It is my Kamala Harris moment. You recall her questioning of Brett Kavanaugh at his confirmation hearing. She sets him up carefully: Q: Judge, have you ever discussed Special Counsel Mueller or his investigation with anyone? A: Well, it was in the news every day. Q: Have you discussed it with anyone? A: With other judges, I know, uh – …
DEFENSE: Before I begin my argument, I’d like to invoke the rule on witnesses. HEARING EXAMINER: The what? The rule on witnesses? DEFENSE: Yes, sir. The sergeant has concluded his testimony. He will be a witness against my client at trial. I would ask that the sergeant be excused while I make my argument. HEARING EXAMINER: Something could said that he needs to …
Every four years, D.C. Superior Court re-establishes the panel of criminal defense lawyers who are eligible to accept court appointments. The first re-establishment occurred in 2010 and the second in 2014. Chief Judge Robert Morin just issued his most recent order re-establishing the panel for 2018-2021. Unlike the 2014 process in which the Court reduced the number of eligible …
“I am in.” This is what my niece Meg says as she forces open a window on the first-floor and crawls into the building. She comes around to the front door to let the rest of us in. I am horrified. I am also impressed. I follow my sister and daughter into the building to join her. We have just …
This is not a Disney movie. That impassive face with the dull eyes never once brightened to see me. He never confided in me, even when his defense depended on it.
When it comes to cross-examination, I consider myself a minimalist. I figure out what I need from the witness. I tell my version of the story. And I ask the witness to agree with me. Some lawyers have the witness repeat the testimony from direct. This is inconceivable to me. It was bad enough to hear the bad facts the …
Q: Officer. You testified on direct that my client was talkative when you first approached his car. A: Yes. As I began speaking with him, he was repeating himself quite a bit, wasn’t really answering my questions, just kept repeating himself. He kept talking and talking and just wasn’t really cooperative at the time that I walked up to the …
BY DEFENSE COUNSEL ON CROSS Q: Ms. Smith, do you have an email account? A: Do I have an e-mail account? Q: Yes. A: I do. Q: Is it a Yahoo account? A: No. Q: What is your e-mail? A: It’s – Q: Actually, let me ask you this way. Are you familiar with an e-mail account Tamara1540@nullyahoo.com? A: I …
The President of the United States has access to the best minds in the country. Presumably, this includes people with a basic grasp of grammar and syntax. “Despite this substantial income figure and tax paid, it is totally illegal to steal and publish tax returns.” This is an 18-word sentence from a statement issued recently by the White House. First, …
I am watching a guilty plea from the gallery. The prosecutor reads out the alleged facts from the police report, and the defendant says, yes, that is what happened. The colloquy continues. The defendant then tells the judge that she is not actually guilty. The only reason she is taking the government’s deal is because her lawyer made her. And, …
Perhaps I should not admit it, but I like the Assistant U.S. Attorneys in D.C. They are generally smart, reasonable and decent people. They know the law. And, like defense attorneys, they are just trying to do the right thing. My introduction to prosecutors – the assistant district attorneys in Philadelphia – was not a positive one. My experience in …
My wife believes in helping out those who are less fortunate. I believe that if everyone would stop giving money to the panhandlers who frequent every major traffic intersection in Baltimore, the panhandlers would be gone within a week. If I were to ever run for office, I would have two planks on my platform. The first would be for …
On the morning of trial, I stick my head into the small room outside the courtroom where the police officers are assembled. I have spent hours watching and indexing footage from the body worn cameras three of the officers activated on the night of the arrest. So I feel as if I know each officer very well. Officer Palmieri is …
Q: When did you have that conversation then with David? A: Prior to him ending up in the hospital. Q: Do you recall the date, approximately? A: No, I do not recall an approximate date. Q: Not even a year? A: What? Are you that stupid? 2013. Q: You didn’t have a conversation with him in 2012 about selling it …
Back in my days with the federal government, before I had my own J.D., I hated working with the lawyers. It was not just that they spoke a strange language and treated each other as if they were all members of an exclusive club. It was also that they seemed to come up with a million reasons to block everything …
Guest Entry by Mary Anne Brush Mindfulness. It’s become quite the buzzword, but what does it mean? Jon Kabat-Zinn, teacher of mindfulness meditation and founder of the Mindfulness-Based Stress Reduction Program at the University of Massachusetts Medical Center, defines it as paying attention on purpose. It’s an effort to be ever-present with an experience in the moment. When it comes …
The complainant is having a melt-down in the hallway. It is not my case so I have no idea what is going on. All I see are two young prosecutors trying to calm her down. The more they talk, the angrier she gets. The situation seems to be getting out of control when a U.S. Marshall arrives. He is an …
I am hit so hard that my boot flies off as I fall backward. The boot slides across the bricks out onto the street. Our dog scampers after it. She thinks we are playing. I should have seen the three young people – two males and a female – standing on the corner in the dark waiting for me. But …
The jury is still deadlocked after three days of deliberations, and the judge declares a mistrial. She releases the jurors. Anyone interested in answering questions from the lawyers, she tells them, should stick around in the jury room. All 12 jurors are there when the four of us lawyers – two from the government and two from the defense – …
It is not easy sitting second-chair at a trial when you are used to running the show yourself. Recently appointed as a provisional member of the panel to represent indigent criminal defendants in D.C., I need to second-chair two jury trials before I can be considered for inclusion on the full panel. So I go to the lawyers I most …
Criminal defense attorneys often use flat fees; that is, we charge a set sum to cover the entire course of a representation. This includes arraignment, negotiations with the prosecutor, any legal research that needs to be conducted, preliminary hearings and status hearings, trial, and, if necessary, sentencing. As Mark Bennett has put it, the flat fee is at once the …
I tried to argue a while back that, when it comes to D.C.’s statute on Threats to do Bodily Harm, parking enforcement officers should be considered to be particularly immune to threats. After all, they are used to dealing with angry people who have just found a ticket on their windshield. Such officers, I would assume, are also trained both …
Three months into my court-appointed work in D.C., I now have a completely different perspective on representing indigent criminal defendants. At the time I quit my job as a public defender in Philadelphia after a three-year stint there, I was pretty burned out. I was also jaded when it came to the people we represented. Many of the people had …
When I started my practice in 2009, I asked an old-timer – somebody who had been practicing in D.C. for over 25 years – how to introduce character evidence in D.C. I have no idea, he replied. Because I have never done it. Many indigent criminal defendants have long criminal histories. It is much easier to get into trouble with …
Ken Womble of Fault Lines won the Simple Justice award for blog entry of 2015 and that is fitting. Scott Greenfield has been complaining about the lack of vibrancy in the criminal blogsphere and Womble is a refreshing new voice. Let’s hope he, Andrew Fleishman, and others at Fault Lines can keep it up. Greenfield is certainly right that the …
There is good news and there is bad news for anyone who has ever been charged with a minor criminal offense. The good news is that the government has a ton of these cases that it needs to prosecute. This means that it will probably offer most first-time offenders some type of diversion program in which they can do community …
As I transition out of doing court-appointed juvenile cases, I realize how much I will miss the kids. * * * * * “Darrell” was my typical client. Like all of my clients, he was my favorite. When this is over, Darrell told me one time, you are going to take me out for dinner. You can bring your wife. …
THE COURT: Okay. Now, see, we’re running into a little bit of a problem here. THE WITNESS: Okay. THE COURT: This is a trial in an American courtroom. THE WITNESS: Okay. THE COURT: And you have sworn to tell the truth and can go to prison if you don’t, okay? So within the last 30 seconds, you have told me …
I have just been appointed to the D.C. Superior Court panel for adult court-appointed cases. I was one of three lawyers appointed on a “provisional” basis. (Three other lawyers were promoted from the provisional panel to the full panel.) Those of us on the provisional panel need to serve a two-year probationary period before we can start doing felonies. To …
The 2015 list of lawyers eligible to accept court appointments in juvenile cases is now out. Chief Judge Lee F. Satterfield issued the order approving the list on October 23. The list will be good for the next 4 years. At that time, the panel will again be re-constituted. The Family Court Panels Oversight Committee received 220 applications for one …
The prosecutor is mad at me. So I send her a quick email to apologize. It is true: I am sorry. I am sorry that she has been sick. I am sorry that her daughter has been sick. And I am sorry if I embarrassed her in front of the judge. But I am not sorry for complaining to the …
D.C. Court of Appeals Judge Catharine Easterly writes what I think. The difference is that she finds the words that elude me. And the words she writes impact D.C. law. Her impact continues in Antoine Mayhand v. United States, 127 A.3d 1198 (D.C. 2015). The “excited utterance” exception to the hearsay rule is over-used. Prosecutors can get lazy: How hard …
I am doing a court-appointed criminal appeal, and I am cranky with the defense lawyer who tried the case. He won’t return my phone calls. He won’t send me the trial file. I have no idea why he appealed. And I find, upon reviewing the trial transcript, that he messed up the one potential area for reasonable doubt by asking …
Guest Post by Mary Anne Brush (Re-printed from the Grosse Pointe News) Two milestones mark either end of my summer. My 90-year-old mother died at the end of May and my youngest child will leave for college at the end of August. Within the space of three months, I will have become both an orphan and an empty nester. The …
Peer review is a critical component of any scientific research. You don’t simply expect people to take your word for it. Instead, you send things out to other experts in your field and you say: I am confident in the results I have received. But have at it. Scientific results must be reproducible, preferably by independent, outside parties. Finally, you …
Criminal and DUI Defense in the District of Columbia.
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A: It is a photograph of the bottle that was thrown through the window. Q: How did you find that bottle? A: I didn’t find the bottle. The policeman found the bottle. THE COURT: So she didn’t find the bottle. It seems that you put facts in your question that aren’t in evidence. Did you want to rephrase the question? …
The judge informs me that I am “badgering” the witness. I have heard of “arguing with a witness” and “harassing a witness.” Until the judge accuses me of “badgering” the witness, however, I didn’t even know there was such a thing – other than on TV, of course. The witness is the petitioner in a civil protection order case. I …
In DUI cases in which a suspect refuses to submit to a breath, blood or urine test, judges will typically base a guilty verdict on two different considerations. First, there are the results of the Standardized Field Sobriety Test (SFST). Second, there are the police officer’s observations with respect to the suspect’s appearance and demeanor at the time of the …
Many years ago, our mother had to go to the hospital, and it took the doctors a long time to figure out what was wrong with her. During that time, she was running a very high fever and was delirious. She was also being uncharacteristically difficult. They took her children out in the hall separately to ask us questions. We …
I wanted to hit him myself. This is what I tell my client after speaking with the complainant in a simple assault case. My client is accused of punching the complainant in the face. The complainant turns out to be a first-class jerk. I call him up before the arraignment to find out what happened. I also express concern for …
I went into a bank this morning wearing sweat pants, and the guy greeting people at the front door called me “Buddy.” I am sure that, had I been wearing a suit, he would have called me “sir.” As a younger man, I used to hang out with my cousin and his friends. Let’s just say that if you saw …
The pizza delivery guy is really upset. He has $250 worth of pizza in the backseat of his car, and his next destination – after leaving our house – is smack dab in the middle of the riots. “I can’t believe my boss,” he tells me. “He is an idiot. He agreed to be paid in cash for this order. …
My wife and I live two blocks from North Avenue in Baltimore. Our house is a short walk from the main events of last night. The helicopters have been annoying, and they are back now, suggesting that something is going on again today. But, contrary to the way things are being portrayed on T.V., the looting and the violence have …
Your client is charged with Leaving After Colliding – Property Damage. This is the technical way of saying that he is charged with “hit-and-run” or “leaving the scene of an accident” as the offense is known in other jurisdictions. Your client is a professional with a pristine driving record. He has never been arrested before. He rear-ends another vehicle while …
My wife and I have tickets to see Bob Dylan at the Lyric. This is good news. I like Bob Dylan. And although my wife may not be terribly enthusiastic about his music, she is always happy to go out. Besides, the Lyric is just a couple of blocks from our house. We won’t need to worry about parking. * …
The D.C. Court of Appeals has issued a number of opinions over the last couple of years in which it has refined the definition of “significant bodily injury” under D.C.’s felony assault statute. In Nero v. United States, for example, the court found that a bodily injury was significant when a bullet passed through the complainant’s bicep, causing “obvious pain …
And sometimes the D.C. Court of Appeals gets it just right. For years, the Office of the Attorney General in D.C. has argued that stationhouse videos of suspects in DUI cases are not “discoverable”; that is, that they do not need to be preserved and turned over to the defense under D.C. Superior Court Rule of Criminal Procedure 16. Although …
We had a tremendous support network at the public defender’s office in Philadelphia. There were social workers and mental health professionals. There were administrative staff focusing on probation, parole, and the expungement of criminal records. If you had a question about a particular point of law or opinion, there was a whole group of appellate lawyers at your disposal. And …
We like to think that the fate of our case will rise or fall depending on our lawyering. Placing us at the center of everything, this perception helps our egos. It also suggests complete control: We are guaranteed victory if only we work hard enough. And that is reassuring. Sometimes, however, we win not because of our lawyering but despite …
Our son is home from college. The front door opens and there he is: Tall and slender, like Telemachus standing in the doorway of the shepherd’s hut. There is the pile of clothes in his bedroom, the groan of pipes as he turns off the shower every morning, and the male voice rumbling from the floorboards beneath me. And then, …
We all have our pet peeves when it comes to the English language. I had an English teacher in college who offered a $1 million reward to anyone who could find a single instance in which use of the word “utilization” would be preferable to “use.” As far as I know, this reward is still unpaid. I had a boss …
I will not take cases away from the Public Defender Service. How can I take someone’s money when that person is already getting top-notch legal representation for free? I am trying to make a living. But I also have to live with myself. The other day, for example, I got a call from someone seeking to appeal a recent conviction. …
You are allowed to use a reasonable amount of force to protect property. This is true “regardless of any actual or threatened injury to the property by the trespasser.”
Over at our private family page on Facebook, we have been having a lively discussion about Serial, the This American Life podcast that investigates the 1999 murder of Baltimore County high school senior Hae Min Lee. Lee’s former boyfriend Adnan Syed is currently serving a life sentence for her murder. The 12-episode podcast investigates allegations of his innocence. My brother-in-law …
In Cheeks v. United States, a case issued a couple of months ago, the D.C. Court of Appeals interpreted the “interfere” provision of D.C.’s Assault of a Police Officer (APO) statute. (It is illegal under this statute to assault, resist, oppose, impede, interfere with or intimidate a police officer who is performing his official duties, and the court has had …
Sour. Unprofessional. And extraordinarily slow at everything she does. That is my assessment of the woman who sits at the reception desk on the 10th floor of the Office of the Attorney General. She reminds me of everything I didn’t like when I worked for the federal government many years ago. I complain about the receptionist to one of the …
Q: You are certified to administer the standardized field sobriety tests? A: Yes. Q: So you are familiar with the science behind the standardized field sobriety tests? A: Yes. Q: And you are aware that the tests have never been peer-reviewed? A: Um. I was not aware – HEARING EXAMINER: What is the relevance of this? A: That’s – HEARING …
DEFENSE COUNSEL: Objection. HEARING EXAMINER: Basis? DEFENSE COUNSEL: I would ask that the officer testify from memory and not read from his report. HEARING EXAMINER: Officer, are you testifying from memory or are you using the report to refresh your recollection? OFFICER: I am using the report for recollection. HEARING EXAMINER: Okay. And are you relying solely on the report …
“I can get you a good deal because I know all the prosecutors.” This is what one of my competitors says to a potential client. I know this because the client tells me. She wants to know if I can get the same results for her. There are three things wrong with this statement. First, by suggesting prosecutors will offer …
During the second semester of my senior year in college, I submitted a paper for my English class that was three-quarters of a page long. It was my last assignment for a class I was taking pass/fail and I already knew I was going to pass. But I had to turn in something — anything — so that I wouldn’t …
The two young men have been in the same place at the same time before. I have seen it on the video recording. The first meeting – captured by a surveillance camera at the back of a D.C. metro bus — – involved a violent altercation in which they exchanged blows. The kid getting the worst of it – my …
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 be closer to the trial …
I am a fan of D.C. criminal defense attorney James Colt. It is not only his name, which sounds like it was pulled from a Harlequin romance. It is also that he is a pleasant guy and, from what I can tell, a very good lawyer. Now there is this: I am standing by the clerk’s desk in the courtroom …
The Assault on a Police Officer (APO) statute is so broad that the D.C. Court of Appeals has had to issue multiple opinions to interpret it. In Edwin Cheek v. United States, 103 A.3d 1019 (D.C. 2014), an opinion it issued today, it interpreted that portion of the law that makes it illegal to “interfere” with a police officer while …
The witness refuses to testify. “I am not a snitch,” he tells my investigator Wayne and me. “But we am not asking you to snitch on anyone,” I reply. “We are just asking you to testify. To tell the truth about what you saw. We need your testimony for our defense.” When I was growing up, a snitch was someone …
She is assertive without being aggressive. She knows when to push and when to hang back. She is pleasant and well-spoken. She does her homework. She is committed to her clients while keeping a sense of humor. As an avid student of the law, she is always ready to talk things through with you. She is smart in a way …
The caller tells me he wants my professional opinion. What he really wants is some free legal advice so that he can second-guess the lawyer he has already hired. But the caller has three problems. His first problem is that I remember him. I remember speaking with him not once but twice on the phone before he decided to hire …
I read every transcript I can get my hands on, including my own. My office mate at the Philly PD’s office used to give me a hard time about that – he thought I was being vain. But he may have been giving me more credit than I deserved. Sometimes you are proud of how you did. Other times, with …
The judge takes the bench at 9:15 am. That she does this every day without fail is a sign of respect for herself, for the system, and for every person who appears in front of her. And it makes my job easier too: Make sure you are there no later than 9:00 o’clock, I tell clients. If we are first …
Just because you repeat something over and over does not make it true. Nor are you permitted to “bolster” your own witness. A “prior consistent statement” – a witness’ previous statement that is consistent with something the witness testifies to while on the stand – is generally inadmissible. If it is an out-of-court statement offered for the truth of the …
Guest Post by Tyler Wolff* These are the first words that went through my head when the jury found me guilty of my second DUI. The first one was a dangerous mistake: I was young, underage, drinking with a fake ID, and hadn’t consumed much alcohol in my life up to that point. Really, growing up, I didn’t drink much. …
Dear Juvenile Client: You must think I am one really, really good lawyer. Why else would you violate every condition of your pre-trial probation — knowing that this would result in your being locked up until forever — unless you were absolutely convinced that I was going to beat the case? You are the boss. Consider me as yourself but …
I am in Nairobi. Kenya is famous, among other things, for its malachite jewelry, and I would like to buy my wife a malachite necklace. I check at the hotel store and see that the necklaces there sell for well over $100. So I go out to a market on the street with cash. A guy there offers me a …
You should not feel bad. Believe me, you are not the first person to be fooled by police into making a statement or doing something else incriminating. Remember: They are professionals. They are good at what they do. And you are not a professional criminal. Lots of educated, savvy and sophisticated people have fallen for the exact same trick. Some …
The Metropolitan Police Department will begin a pilot program this week in which police officers will be outfitted with body cameras to record their interactions with civilians. According to the Washington Post, 165 officers will be equipped with a camera on either their shirt or glasses. The purpose of this program is to “increase public trust between police officers and …
We live on Park Avenue. It is a beautiful tree-lined street in an historic part of town. But it is not what you think: It is not Park Avenue in New York City. And that is because we live in Baltimore. That is the thing about this city. For every street, bridge, monument, or tourist attraction, there is a street, …
You suspect it happens all the time: the prosecutor withholds exculpatory information from the defendant, thereby preventing the defendant from mounting an effective defense. The problem is that, with the government in sole possession of all the information, you have no way of proving it. And then there is Vaughn v. United States, 93 A.3d 1237 (D.C. 2014). With an …
One of the hazards of public interest work is that it seems to contribute to smugness. I may be underpaid and overworked. But at least I am doing the Lord’s work. And that work is more important than anything my higher paid colleagues with more prestigious jobs are doing. I encountered a little bit of this phenomenon during my three …
This is what the witness’ duty is. It is not to “protect and serve” like a regular police officer. Instead, it is to “observe and report.” The judge isn’t sure she heard this right, and she asks him to repeat it. He doesn’t flinch. He obliges. I have some fun with this on cross. So you don’t carry a gun? …
With the Marijuana Possession Decriminalization Amendment Act of 2014 having gone into effect yesterday, the Washington Post did an article today discussing the fate of the last few people who were arrested under the old law. (From now on, possession or transfer without payment of one ounce or less of marijuana will be a civil infraction, not punishable as a …
I am clueless about the politics. But you know this has to be a really, really bad thing for the National College for DUI Defense (NCDD). Justin McShane hinted that something was up at the most recent meeting of the NCDD in New Orleans when he announced that his presentation that day would be his last. At the time I …
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 make it unprofitable to require …
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 something, esp. one that is …
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 also prove a mental part …