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 makes things unnecessarily burdensome. What …
Rule 41 of Keith Evans’ Common Sense Rules of Advocacy is what he calls “Newton’s Rule.” Isaac Newton’s third law of motion, of course, was that for every action there is an equal and opposite reaction. Evans applies this rule to trial advocacy to suggest that you never want to get into a confrontation with your finder-of-fact, whether that’s a judge …
During my freshman year at college, there was an older guy at my fraternity everyone used to call “Heeb-heimer.” That was a play on his real name, which was Hartheimer. He was Jewish. I used to call him that too. Actually, I called him “Hee-Heimer.” I had never heard of someone being called a “Heeb” before, and since he was …
When I was a boy, we used to sing a German song called “Du Liegst Mir Im Herzen.” Taught to us by a German friend, we sang it so often, usually in rounds, that I knew all the words without understanding what they actually meant. I can still hear my three sisters harmonizing on the song today. Later in life …
The “corroboration rule” requires the government to introduce “substantial independent evidence” establishing the trusthworthiness of a confession before that statement can be submitted to the jury.
There are certain reference materials that are essential to a law practice. In the case of a criminal defense practice in D.C., for example, you could not get by without the D.C. crimes code, jury instructions, rules of evidence, sentencing guidelines, the two volumes of the Criminal Practice Institute’s manual, and some type of legal research service. In addition to …
Although you might think that invoking your right to remain silent and invoking your right to a lawyer would have the same legal effect, you would be mistaken. In fact, if ever forced to choose, you should always ask for a lawyer. Police can resume interrogation after a period of time when you invoke your right to remain silent. But …
A couple of years ago, shortly after we moved back to Arlington, I decided to stroll by our old house, just a mile or so from where we live now. I was standing in front of the house, admiring the improvements the new owners had made to the front yard, when the woman drove up in her mini-van. I was …
It turns out that Wayne, my investigator, and I both do the laundry in our households. Apparently, neither of us has a wife who understands that you cannot put whites in with the colored clothes, set the dial to hot water, and then expect to have the whites coming out like they looked before. As I tell my wife, you …
As soon as I have the signed order in hand, I head to the “at-risk” cell block to make sure my client is released. My client’s mother, waiting in the hallway, is mad at me. She thinks her son is out-of-control and needs to be locked up, and we have been working at cross-purposes throughout this case. He comes and …
My investigator Wayne Marshall gets an A+ for his testimony yesterday at trial. Of course, I am biased. Marshall is everything you could want in a witness: He knows his stuff. He is well-spoken, direct, straight-forward. He answers the questions you ask of him and nothing more. He doesn’t try to anticipate what he thinks you want him to …
One of the first things they told us during training at the public defender’s office in Philadelphia was that, although they could help us develop many of the skills we needed to become successful trial lawyers, they could not help us with our trial personas. That was something we had to develop for ourselves. And there was no one-size-fits-all approach. …
My wife is not real picky. That is fortunate for me. Otherwise, she might never have decided to marry me. We were visiting different neighborhoods in Baltimore this past weekend in advance of a possible move there next summer, and we happened to run into a woman on the street who turned out to be realtor. The woman was the …
Yes, they record your personal phone calls from prison. Yes, they have someone listen to those tapes. And, yes, they sometimes find something on those tapes to use against you. There is usually a voice recording that periodically reminds both parties — the inmate and the family member or friend he is speaking with – that the conversation is being …
Q: Would you describe yourself as being tough on the bench? A: Demanding. Q: You’re demanding. A: Tough, yes, in the sense that I want lawyers to be prepared. I think that being a lawyer is one of the best jobs in the whole wide world. Q: Really? A: You want to know why? Because every lawyer, no matter whom …
The D.C. Criminal Jury Instructions provide a very helpful explanation with respect to the difference between direct and circumstantial evidence. The bottom line? One form is not necessarily preferable to the other. 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 …
Courts seem to be bending over backwards to avoid basing decisions on Arizona v. Gant. In an opinion issued last month by the D.C. Court of Appeals, for example, the defendant was pulled over for a minor traffic offense. The defendant was ordered out of the van and frisked, with the officer finding no weapons. The officer then handcuffed the defendant …
This blog again received the most popular votes in the criminal justice category of the ABA Blawg 100. Thank you very much to everyone who nominated and/or voted for it. Here are the blogs that received the most votes in each category: Business of Law: Divorce Discourse Careers/Law Schools: Inside the Law School Scam Corporate: California Corporate & Securities Law …
Without more specifics, the defendant’s movements were insufficient to arouse a reasonable fear in the officer that Mr. Jackson was presently dangerous.
She doesn’t know it yet but Mindy Daniels is going to be my mentor on all things having to do with the D.C. Court of Appeals.
The last time I sat for a bar exam – in Virginia in 2010, after taking the Pennsylvania exam in 2006 – I swore to myself that I would never, ever do it again. Filling out the application for the character evaluation was bad enough. Learning umpteen new subjects in which I had no interest and then sitting for two …
Here are 15 reasons I prefer D.C. Superior Court to the Criminal Justice Center in Philadelphia: There is a cafeteria. There is a lawyer’s lounge. There is a legal library. Women in orange jackets greet you when you come into the building and direct you to where you need to go. You can get into an elevator. When you can’t …
Interdum minus fit plus. This is Latin for “sometimes less is more.”
As recent D.C. case law demonstrates, the distinction between general and specific intent crimes is both simplistic and potentially misleading.
One of the problems with bad law is that it leads to even worse law. I have never been a big fan of the U.S. Supreme Court’s decision in Illinois v. Wardlow, which held that being in a “high crime” area (what part of any U.S. city does not have a lot of crime?) and running away at the sight …
I am standing with my niece in front of my father’s bureau, and I show her the gold-plated watch with the “Hamilton” typed out across its face. My father loved pocket watches and there are a couple of them still sitting on his bureau so it takes me a moment to find the right one. The watch I select is …
If constructive possession is a legal fiction, then joint constructive possession is a double legal fiction.
If you want to get a complainant to speak with you before trial, ask the complainant about his or her injury. People love to talk about how they have been wronged. The floodgate opens. My investigator Wayne and I approach an interview with the complainant as if we are preparing for the Superbowl. After all, in some cases, you only …
I put our star witness in jail. I have heard about prosecutors being slammed for doing this. One of my adjunct professors in law school – a prosecutor in Philadelphia – ended up on someone’s list of the top ten worst prosecutors in the country for having one of her witnesses in a murder case sit in custody for two …
Crawford held that a “testimonial” statement can only be admitted if: (1) the government can prove that the witness was unavailable to testify, and (2) the defendant has had a prior opportunity to cross-examine that witness.
I get a lot of strange emails and phone calls from people who find me on the Internet. A woman wrote me the other day looking for help with all sorts of different legal problems – from personal injury to child custody to criminal matters. It was unclear from the email whether she was the victim or the accused. And …
One of the reasons I accept court appointments in juvenile cases — as opposed to adult cases — is that juveniles generally listen to you. But even then you cannot take that for granted.
Seth Godin writes about a friend of his, a middle school teacher, who avoided the teacher’s lounge because “he couldn’t bear the badmouthing of students, the whining and the blaming”: Just about every organization, every on-line service, every product and every element of our culture now has chat rooms and forums devoted to a few people looking for something to …
Right to confrontation applies to testimonial statements of a non-appearing witness unless (1) the witness is unavailable and (2) the witness was subject to prior cross-examination.
He was the angry and alienated younger brother of my best friend while I was growing up. My mother sent me newspaper clippings about him when he was a member of a grunge rock band of local renown. She didn’t need to send me anything when he became nationally and then internationally known: Spin magazine put him on its cover …
The Jencks Act,18 U.S.C § 3500, requires the prosecution to turn over any “statement” of a prosecution witness that relates to subject matter at issue.
The general rule on “bolstering” is that you are not allowed to sing the praises of your own witness until that witness has been challenged or impeached.
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.”
This, from Prosecutor’s Discretion, says it much more persuasively than I ever could: Facebook, Twitter, Myspace (anyone use that anymore?), google+. I’m on record by saying I love them all. People need to brag about their crimes and what better way than in writing on Facebook. They love to threaten witnesses. They connect with a group of friends, which makes it easier to show …
Here are 11 rules for effective writing, with thanks to Kendall Gray of The Appellate Record for reminding me of them: Avoid alliteration. Always. Prepositions are not words to end sentences with. Avoid clichés like the plague. (They’re old hat.) Eschew ampersands and abbreviations, etc. One should never generalize. Comparisons are as bad as clichés. Be more or less specific. …
I am watching what has to be the best cross-examination at a probable cause hearing I have ever seen. It is a new attorney from the Public Defender Service (PDS), someone I have never seen before, and he is handling the cross-examination like he is Irving Younger. He is pleasant but firm. He moves methodically through the facts, pinning the …
The Associated Press reported on the lawsuit filed yesterday in federal court in San Francisco alleging that current and former members of the U.S. military were sexually assaulted while serving: The 20 women and men filing the lawsuit claim they were harassed, raped or assaulted and suffered retaliation when they reported the incidents. The lawsuit names top Department of Defense …
Previously convicted of a felony, Michael Myers was arrested while carrying a garbage bag that contained the disassembled parts of a shotgun. Was he guilty of being a felon in possession of a firearm?
Driving without a license has long been a strict liability criminal offense in D.C. That is, in order to secure a conviction for this offense, the government need only prove that you didn’t have a driver’s license at the time you were driving. It does not need to prove any type of criminal intent or guilty knowledge; in this case, …
Today’s legal maxim is not particularly eloquent, in either Latin (acta exteriora indicant interiora secreta) or English (“outward acts indicate the thoughts hidden within”). But I include it today because it deals with intent, which is a key concept in criminal law. Men rea (or “state of mind”) is an element of most criminal offenses. And since the finder of …
He was the best octopus hunter in Tolo. It was always an honor whenever he sent one of us boys out to the kiosk to buy him cigarettes: Karelia ke spirta, parakalo. It was an even bigger honor if he invited you along to hunt for octopus. He did the diving. You stayed on the surface, holding onto the octopi he …
It is hard not to like someone who has thrown in her lot – however temporary that may be – with one of your children.
She is obviously a person of good taste.
“Readily available” is defined in Washington, D.C. as being in close proximity or easily accessible during commission of crime of violence/dangerous crime.
Guest Post by Emma Brush A visit to Arlington was the occasion for this undeserved opportunity of mine to post. Originally, my Uncle Jamie had a jury trial scheduled. Knowing that I was considering law school, he thought it would be fun for me to see. Unfortunately, the court date was postponed. Fortunately, he had a juvenile case that was …
According to Rule 3.8 of the D.C. Rules of Professional Conduct, a prosecutor in a criminal case shall not: “[i]ntentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused …
On the morning of trial, the prosecutor finds out that the testimony provided by a police officer at the preliminary hearing was inaccurate. Although the prosecutor himself is not planning to call this particular police officer to testify at trial, he knows that the defense attorney is. So what does prosecutor do? Does he immediately contact the defense attorney to …
After a guest post by my brother turned out to be one of the most popular pages on this site, I had hoped that the classics scholar was going to be a regular contributor on this site. Alas, my no good brother has turned out to be a complete slacker with better ways to spend his time. So I am …
I walk my client out to the street afterward (“You mean I don’t have to sign anything, I can just go?”), disappointed that, since it is late in the day, there is no one still at the courthouse to share the news with. First I get my wife’s voice mail. Then I get my investigator’s. Walking over to the parking …
The Juvenile Services Program at the Public Defender Service (PDS) helps kids adjust to life at one of the District’s secure detention facilities.
If Brady provides a constitutionally protected right to information, legislatures in this country should provide a mechanism to enforce this requirement.
According to D.C. Court of Appeals decision in Wynn v. United States, the actions of police officers responding to a crime scene do not fall within the definition of “due administration of justice in any official proceeding.”
Your client is cranky with you for the lousy job he thinks you are doing on cross-examination. There are no dramatic “gotcha” moments like you see on T.V. Instead, every time you elicit what appears to be an inconsistency in the witness’ testimony, you pull back, moving onto a new line of questioning. It is almost as if you didn’t …
The standard for proving operating while impaired and driving under the influence is the same; specifically, impaired driving ability to slightest degree.
According to U.S. v. Taylor, police must have reasonable belief for suspecting criminal activity in order to justify a warrantless car search under Gant.
The problem with using a canon of statutory interpretation to justify a legal opinion is that you can usually find some other canon to arrive at the exact opposite conclusion. For example, to support its recent holding in In Re D.M., 47 A.3d 539 (D.C. 2012), the D.C. Court of Appeals used the rule that, whenever possible, different provisions within a …
Over at Tempe Criminal Defense, Matt Brown has been talking about expectations – client expectations and his own. “The angry client rant is tough,” Brown says. And the problem, he says, starts with expectations. Clients expect the system to treat them fairly. They blame their lawyers when it doesn’t: I would like to think that my threshold for having people …
A new D.C. law, which took effect on August 1, 2012, has increased penalties for people convicted of driving while intoxicated (DWI), driving under the influence (DUI) and operating while impaired (OWI). For example, the penalty for a first-time conviction in a DUI/DWI case has gone up from a maximum fine of $300 and 90 days in jail to a …
Flight hasn’t always been such a terrible thing. At one time, courts seemed to recognize that there might be all sorts of reasons an innocent person might want to distance himself from the presence of a police officer. Not all contacts with police officers are Norman Rockwell positive, particularly for certain members of our society. And, absent a reasonable suspicion …
Q: Now, officer, let me turn to the walk-and-turn test. A: Okay. Q: You testified on direct that Mr. Smith stepped off the line three times. That is, he stepped off the line twice on the way down, and once on the way back. A: Yes. That’s right. Q: And stepping off the line is one of eight clues you …
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 on a jury, I would …
When I worked as a public defender in Philadelphia, we had what I can only describe as an uneasy relationship with the private criminal defense bar. Looking at it from the standpoint of the PD’s office, there were a number of reasons for this somewhat dysfunctional relationship. For one thing, some of the private defense attorneys were just plain bad, …
The prosecutor can hardly blame me for being skeptical. I ask her about one of the counts that was dropped from the complaint, and she tells me it was because the complaining witness said a few things to her that didn’t add up. “That’s Brady, then,” I tell her. I feel a little badly because she is young and I …
One of the questions parents of a juvenile client often ask me is the effect of a juvenile adjudication on their child’s future. The question often comes up in the context of plea negotiations. If, for example, the government has offered to reduce the charge from robbery to simple assault or theft, the parents want to know if and how …
Dear Officer Parrish: A couple of weeks ago, I cross-examined one of your colleagues from the 3rd District. The issue at that hearing was similar to the one under consideration today: Whether or not the arresting officer had reasonable suspicion or probable cause to detain my client. Your colleague decided to strengthen the government’s case against my client by lying. …
The defendant is charged with armed robbery. He and the government reach agreement on a plea deal in which the government agrees to ask for no more than 10 years of incarceration. In a memorandum submitted to the judge before sentencing, the government then violates that agreement by asking the judge to impose 20 years. It is the judge, not …
I have never been a fan of D.C.’s “threats to do bodily harm” statute. For one thing, it criminalizes behavior that is already covered under the assault statute. After all, is there any real difference between threatening to hurt another person and intending to frighten someone? For another, with almost identical language in both the felony and misdemeanor threats statutes, …
We have been coming to Cape Cod with my extended family now for 25 years. We came first as couples. Then we came with children. With the 13 cousins growing up and the rest of us just getting old, it is unclear how many more years we will cross the Sagamore Bridge to make this trip. Like a game of …
Jejomar Untalan has been busy. I reported last week on his successful appeal in In re S.B. This week the D.C. Court of Appeals issued yet another decision bearing Untalan’s name as the appellant’s attorney: In re W.R., 52 A.3d 820 (D.C. 2012). This time, however, Untalan was unsuccessful. W.R. was approached during the school day by a police officer …
California v. Hodari D, 499 U.S. 621 (1991), is a lousy opinion. It used to be that a person was seized for Fourth Amendment purposes the moment his or her liberty was “restrained” by “some physical force or show of authority” by a police officer. This was the standard established by Terry v. Ohio, the U.S. Supreme Court case that lays …
Ten years ago this month, I walked out of the Ronald Reagan Building carrying a single cardboard box. Having just resigned from the federal government, the box contained all I had to show after an 18-year career: a coffee mug, photographs, some personal papers, and the plaque they had just given me at a going-away party. The last thing I …
“[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the …
It must be pretty intimidating to arrive at the courthouse for trial to find five police officers, an eyewitness, and a complaining witness all sitting in the hallway, laughing and joking with each other and then growing silent as you pass by – all of them there for the sole purpose of testifying against you, their bond a common interest …
My client was walking along one night in Philadelphia when he was jumped by three men who took his money and firearm. When he went to the police to report the robbery, the police ran his record. They then arrested him for being a felon in possession of a firearm. In other words, he went into the police station as …
The defendant should not have been penalized at sentencing for having exercised his constitutional right to cross-examine the government’s witness at trial.
DEFENSE ATTORNEY: I noticed that you checked the box for “stuporous” on the police report. OFFICER: Yes sir. Q: You also used the term on direct. A: Yes sir. Q: You obviously thought that this was an important observation. A: Yes. Q: Let me ask you, Officer. When was the last time you used that term in every day conversation? …
Q: You testified that my client stumbled as he got out of the car that night. A: That’s right. Q: What do you mean by “stumbled?” A: I don’t know. He stumbled. Q: Did he fall? A: No. He kind of swayed. And he put his hand on the car for support. Q: This was as he was getting out …
I am a middle-aged man with some life experience. I have been doing criminal defense for a while now. Just yesterday I posted how many police officers “editorialize” when testifying. Still, I continue to be surprised – each time anew – every time a police officer gets up on the stand and lies. I should have seen the signs. There …
Many police officers have a tendency to editorialize on the witness stand. It is not that the driver reached for the glove compartment after being pulled over so that he could have his license and registration ready for the officer’s inspection. It is that the “suspect” was making “furtive movements” upon the officer’s approach. It is not that the police …
POLICE OFFICER: . . . The defendants knew they were not allowed in the store. DEFENSE ATTORNEY: Objection. THE COURT: Grounds? DEFENSE ATTORNEY: Your Honor, as to what the defendants knew, I’d object to that and move to strike. PROSECUTOR: Your Honor – THE COURT: Calls – PROSECUTOR: — I think he was saying the defendants – THE COURT: — …
The disciplined judicial mind should not be subjected to any unnecessary strain;…the most austere intellect has a subconscious. How great is this language? Although the language dates back to 1972, it did not come to my attention until it was quoted in a opinion issued this month by the D.C. Court of Appeals, Plummer v. United States, ___A.3d ___, ___ …
It is a snippet of life from a CVS store in the District, viewed again and again through 15 different surveillance cameras. There is a 5-minute view from one camera – say, for example, at the entrance of the store. When that 5 minutes is up, you go back in time like the Bill Murray character in Groundhog Day to …
“That’s as low as my office is willing to go for this type of offense.” This is what the prosecutor tells me. We are talking about the number of hours of community service my client would be required to perform under a plea bargain, and we have deadlocked. This is the only outstanding issue. The difference between us is a …
Back when I was a public defender, my office mate used to come across me reading transcripts from court hearings I had done – from either a trial or a preliminary hearing – and kid me. I thought I was being conscientious, working hard to make myself a better lawyer. He thought I was being vain. Apparently he hadn’t read …
After you get what you need on cross-examination, you sit down. The charge is unlawful entry. Both defendants had been issued a barring notice from the Meadowbrook Run Apartments, and the government alleges that the defendants violated this notice by entering an apartment at Meadowbrook Run. During cross-examination, Attorney A gets the police officer to testify that he saw the …
I recently served as co-counsel in two juvenile cases with Eddie Ferrer of D.C. Lawyers for Youth. Although neither case ended up going to trial, you do get a pretty good sense of your colleagues when working together to represent co-defendants. I am always happy when co-counseling with lawyers from the D.C. Public Defender Service — most recently Michael Carter, …
In an opinion issued last week, Dawkins v. United States, 41 A.3d 1265 (D.C. 2012), the D.C. Court of Appeals addressed the issue of how far a party must go in order to preserve an issue for appeal. The Court also confirmed the long-standing principle that the potential bias of a witness is always relevant in assessing a witness’ credibility. …
After pleading guilty to involuntary manslaughter, Dontrell Deaner has been sentenced to 10 years in prison, to be followed by 5 years of supervised probation. Remember Dontrell Deaner? Just over a year ago, his name was all over the Internet in connection with the Joseph Rakofsky fiasco. Rakofsky was the lawyer, a few years out of law school, who took …
The prosecutor has acknowledged that he should have turned over certain information to defense attorneys. That is what he says today. The case was back in 1984. Witnesses came forward when he was still preparing the case to say that there were two other men in the alley that night who were never charged. One of these men, identified by …
Over 65 years ago, Justice Robert H. Jackson, writing for the U.S. Supreme Court in Michelson v. United States, 335 U.S. 469 (1948), complained about the “helpful but illogical options” available to a defendant attempting to introduce evidence of his good character in a criminal trial: “We concur in the general opinion of courts, textwriters and the profession,” Jackson wrote, …
My wife complains about all the closet space I take up with my neckties. I do have lots of them. You see, I have this theory about ties, a theory that was finally confirmed by the guy who sells me my clothes. If you keep wearing the same tie, the tie will refuse to lie flat after a couple of …
One of the things I miss most about working at the public defender’s office was the ability to get immediate feedback from colleagues on an issue. Do you know this judge or prosecutor? Have you faced this type of situation before and, if so, how did you handle it? And so on. A major drawback to this ability, however, is …
To my godson Ross, who has just been accepted to Villanova Law for next fall, I offer the following advice on starting law school. There are lots of books out there with handy tips on doing well at law school: how to brief cases, how to interact with your classmates, how to prepare for exams, and so on. Go out …
One of the things that surprised me when I first began to practice criminal law was the notion that you could be acquitted of a particular offense at trial and then have that very same criminal charge – the one on which you were just found not guilty – serve as the basis for being found in violation of probation …
Beginning July 1, 2012, every person who is convicted of a drinking-and-driving offense in Virginia and who wants to drive on a restricted license will be required to install an ignition interlock device on his/her car. Current law applies this requirement only to repeat offenders and to first-time offenders who are convicted of a blood alcohol level of 0.15 or …