Notes from practice · D.C. Superior Court
Defining a “Testimonial Statement” under Crawford
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...
On “reliable hearsay” in Parker/Rollerson
Hearsay is presumptively unreliable. That is why the law makes it so difficult to introduce hearsay into evidence. McCormick on Evidence § 244 refers...
On interacting with the jury after trial
Trying to read the jury can be a humbling experience. Many years ago, during a DUI trial in D.C., I was encouraged by a young...
Negotiating the “proffer of facts” in a plea agreement
As part of a plea agreement, the government typically requires the defendant to agree to a “proffer of facts,” a written statement of the evidence...
Cross-examination on a “confidential location”
“Confidential location.” An officer utters these two words in a drug case, and the court automatically shuts down all related cross-examination....
Limiting re-cross examination in Sanchez v. U.S.
Criminal defendants have a constitutional right to confront their accusers. In D.C., however, this right does not necessarily extend to recross examination....
The “forfeiture-by-wrongdoing” doctrine in Hairston
Under the ‘forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to...
Bias and corruption in Jones v. US
Bias can be “a favorable or friendly feeling toward a party.” It can also be hostility toward someone, a motive to lie out of self-interest,...
Beating an attempted drug possession case
Now that DFS has lost its accreditation, the government is looking for creative ways to prosecute drug possession cases, including amending the charges to attempted...
On character and grace
Donald Trump’s problems go beyond a lack of manners or character. He is also a sociopath. He does not learn. He has no shame. He...
On the “missing evidence” jury instruction in Howard v. US
Like “reading the white space” on a police report (that is, focusing on what is NOT included), the “missing evidence” jury instruction “essentially creates evidence...
Getting the rules of evidence wrong in HBO’s “The Undoing”
It can’t be much fun to watch a legal drama on TV with my wife and me. We understand the need to keep the story...
Hearsay through the eyes of our law student
When it comes to hearsay, there is only one phrase you need to keep in mind: Hearsay is an out-of-court assertion offered for the truth....
“Present Sense Impression” in Sims v. United States
In addition to contemporaneity and spontaneity, the proponent of a “present sense impression” hearsay exception must prove that the declarant personally perceived the event described....
Re-cross examination in Green v. United States
If the government introduces new evidence during re-direct examination, the defense has a constitutional right to question the witness about that new evidence....