Trump at Resolute Desk

On character and grace

Jamison KoehlerCurrent Events, Evidence

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 is driven only by immediate self-interest.

D.C. criminal defense attorney

Hearsay through the eyes of our law student

Jamison KoehlerEvidence

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. If it doesn’t satisfy that definition, it is not hearsay.

U.S. Capitol Building

Can a witness’s own statement be hearsay?

Jamison KoehlerEvidence

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.

D.C. criminal defense lawyer

Can hearsay be used to impeach?

Jamison KoehlerEvidence

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. 

graffiti hearsay

Are depositions hearsay?

Jamison KoehlerEvidence

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. 

Is a receipt hearsay?

Jamison KoehlerEvidence

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.

Baltimore graffiti

Can Silence Be Hearsay?

Jamison KoehlerEvidence

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. 

hearsay graffiti

Can a Photograph be Hearsay?

Jamison KoehlerEvidence

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” versus “Refreshing Recollection”

Jamison KoehlerEvidence

“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 …

Laying the Foundation for an “Excited Utterance”

Jamison KoehlerEvidence, Trial Advocacy

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?

Impeachment on Personnel Records

Jamison KoehlerEvidence, Trial Advocacy

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 …

Imperfect Impeachment and Kamala Harris

Jamison KoehlerEvidence, Trial Advocacy

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 – …

The Rule on Witnesses at a D.C. DMV Hearing

Jamison KoehlerEvidence, Trial Advocacy

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 …

Jefferson Memorial

The Pros and Cons of Introducing Character Evidence in D.C.

Jamison KoehlerEvidence

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 …

D.C. criminal defense lawyer

Mayhand v. U.S.: “A Statement is Not an Excited Utterance Unless the Declarant is Manifestly Overcome by Excitement or in Shock.”

Jamison KoehlerEvidence, Opinions/Cases

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 …

Police Officer as Expert at DMV Hearing

Jamison KoehlerDUI and Driving Offenses, Evidence, Trial Advocacy

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 …

Refreshing Recollection at a DMV Hearing

Jamison KoehlerDUI and Driving Offenses, Evidence, Trial Advocacy

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 …

Worthy v. United States: The DCCA on Prior Consistent Statements

Jamison KoehlerEvidence, Opinions/Cases

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 …

Judge Easterly Lets The Facts Speak For Themselves In Damning the Government for Brady Violations

Jamison KoehlerEvidence, Opinions/Cases, Professional Responsibility/Ethics

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 …

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

Jamison KoehlerEvidence, Legal Concepts/Principles

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 …

Holmes v. United States: Video-Assisted Testimony Not Hearsay

Jamison KoehlerEvidence, Opinions/Cases

It was a creative argument.  But, not seeing it go very far, I was frankly surprised that the D.C. Court of Appeals devoted an entire opinion to it in Holmes v. United States, 92 A.3d 328 (D.C. 2014). Marvin Holmes was convicted of stealing two shirts from the Saks Fifth Avenue store in Friendship Heights. The store detective testified at …

The Duty to Disclose Includes the Duty to Preserve

Jamison KoehlerEvidence, Legal Concepts/Principles, Opinions/Cases

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 opportunity to have actually watched …

Relevant = Material + Probative

Jamison KoehlerEvidence

According to Federal Rule of Evidence 401, the test for relevance is whether the evidence has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In other words, says McCormick, there are two components to relevant evidence:  materiality …

Jefferson Memorial

Do the Exclusionary Rules Deter Illegal Conduct?

Jamison KoehlerEvidence, Legal Concepts/Principles

McCormick on Evidence 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 the Fourth Amendment to the United …

U.S. Capitol building

Motive, Intent, Identity, and Absence of Mistake Under Drew

Jamison KoehlerEvidence, Opinions/Cases

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 …

Jefferson Memorial

The Difference Between Direct and Circumstantial Evidence in D.C.

Jamison KoehlerEvidence

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 …

Jefferson Memorial

“Call My Accuser Before My Face . . .”

Jamison KoehlerEvidence

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 . . . — Sir Walter Raleigh It is always difficult to predict how a witness will perform under the “crucible of cross-examination.” A far safer bet is to bring in the same testimony through …

D.C. skyline

Lazo v. U.S.: A Court’s Duty To Investigate a Jencks Act Violation

Jamison KoehlerCriminal Procedure, Evidence, Opinions/Cases

The Jencks Act was a nasty little surprise when I began to practice in D.C. It was not that I didn’t appreciate getting the information. It was that I was used to getting this information much earlier in the process in Pennsylvania. The Jencks Act, 18 U.S.C § 3500, requires the prosecution to turn over to the defense any “statement” of a witness …

U.S. Capitol Building

Mason v. U.S.: When Is A Prior Consistent Statement Admissible?

Jamison KoehlerEvidence, Opinions/Cases

I love appellate cases on evidentiary issues – which the D.C. Court of Appeals seems to be doing a lot lately — because they allow me to take out my handy-dandy McCormick on Evidence guide. According to McCormick, there are three things you need to know about the credibility of a witness:  bolstering, impeachment, and rehabilitation. Impeachment and rehabilitation are straight-forward. …

U.S. Capitol building

Longus v. U.S.: On Bias, Extrinsic Evidence, and the Collateral Fact Rule

Jamison KoehlerEvidence, Legal Concepts/Principles, Opinions/Cases

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.”  That is McCormick on Evidence, and it is the clearest, most accurate definition I have ever seen of what constitutes bias. McCormick continues: “[B]ias, or any acts, relationships, or motives reasonably likely to produce …

U.S. Capitol Building

Bickering Over Basic Facts on Cross-Examination

Jamison KoehlerEvidence, Trial Advocacy

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 …

Cue the Radiotape

Jamison KoehlerDiscovery, Evidence, Social Media and Technology, Trial Advocacy

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 …

U.S. Capitol Building

Trial Transcript: A Brand New Prosecutor on Direct

Jamison KoehlerEvidence, Humor, Trial Advocacy

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:  — …

Jefferson Memorial

Groundhog Day at the CVS

Jamison KoehlerEvidence, Social Media and Technology

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 …

U.S. Capitol Building

The ABCs of “Character Evidence” in a D.C. Criminal Case

Jamison KoehlerEvidence, Legal Concepts/Principles, Opinions/Cases

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, …

U.S. Capitol building

Cross Examinations. Directs, too.

Jamison KoehlerEvidence, Trial Advocacy

“No questions, Your Honor.” What could be more satisfying to say after your opponent has completed his direct examination than those four simple words? It is a challenge, a slap in the face with a folded glove.  It is a declaration that the other side hasn’t touched you, hasn’t hurt you at all, with the testimony. It is like Muhammad …

Jefferson Memorial

Coles v. U.S.: The Right to a “Meaningful Degree” of Cross-Examination

Jamison KoehlerCriminal Procedure, Evidence, Legal Concepts/Principles, Opinions/Cases

  Although the ability to cross-examine a witness is a critical component of the Sixth Amendment right to confront your accusers in a criminal case, this right is not without boundaries:  “Once sufficient cross-examination has occurred to satisfy the Sixth Amendment, . . . the trial judge may curtail cross-examination because of concerns of harassment, prejudice, confusion of the issues, …

Jefferson Memorial

Cross-Examining a Prosecutor

Jamison KoehlerCriminal Procedure, Evidence, Trial Advocacy

  I have been called to testify in a criminal case. A couple of weeks ago I represented a woman seeking a civil protection order against a former boyfriend. With the boyfriend now facing criminal charges for contempt of court, certain admissions he made to me during the course of that representation have become relevant to the criminal proceedings. It …

Jefferson Memorial

Why Police Officers Love the “Plain View” Exception

Jamison KoehlerCriminal Procedure, Evidence, Legal Concepts/Principles

  Police officers love the “plain view” exception to the Fourth Amendment requirement for a warrant. It is because this exception is so straightforward and understandable:  I didn’t need a warrant because I saw it with my own eyes.  I immediately recognized it as contraband.  So I grabbed it. All the other exceptions are much more complicated, and the law …

Jefferson Memorial

On Police Officers and Other Bullies

Jamison KoehlerEvidence, Trial Advocacy

  I am sitting in JM-15 at D.C. Superior Court watching a Georgetown University law student cross-examine a police officer on a drug case. The officer is doing the old “dumb officer” routine; that is, he can’t seem to understand any of the questions, even though it is perfectly clear to everyone else in the courtroom what the student is …

D.C. skyline

Why I Like Surveillance Cameras

Jamison KoehlerEvidence, Social Media and Technology

  A proposal to install indoor surveillance cameras at Fairfax County schools in Virginia has created quite a controversy.  With many parents still upset over harsh disciplinary practices in the schools that have led to a couple of suicides, critics of the proposal have expressed concern over any further encroachment on the civil liberties of students.  They see the proposal …

U.S. Capitol Building

Blades v. U.S.: On Cross-Examination and Bias

Jamison KoehlerEvidence, Opinions/Cases

The right to cross-examine witnesses is one of the defendant’s most important trial rights.  And, among the areas for cross-examination, what could be more important than bias?  An inability to accurately perceive events could result in an honest mistake.  Bias suggests that the witness might be deliberately coloring the testimony. In Blades v. United States, 25 A.3d 39 (D.C. 2011), …

D.C. skyline

The “Collective Knowledge” Doctrine in D.C.

Jamison KoehlerEvidence, Opinions/Cases

  The firmly established “collective knowledge” doctrine in D.C. provides that, in determining whether the officers possessed sufficient knowledge to establish reasonable suspicion or probable cause for a search or seizure, it is not what any individual officer knows but what the officers know collectively, whether or not the information is actually communicated from one officer to another. At the …

U.S. Capitol Building

On Jabbar Collins and Other Jailhouse Lawyers

Jamison KoehlerEvidence, Law Practice

I have only seen one “law library” at a prison, and I have to say I was not at all impressed. A converted broom closet with a broken chair and a rickety metal bookshelf, the library consisted mostly of an outdated version of the criminal code, a dog-eared hornbook or two, and, because someone apparently decided they might lend an …

Because Transcripts Can Be Unforgiving

Jamison KoehlerEvidence, Law Practice

When I was a public defender in Philadelphia, my office mate used to come across me reading transcripts from court hearings I had done and kid me. I thought I was being conscientious, working to make myself a better lawyer. He thought I was being vain. Testimony from every preliminary hearing we did was automatically transcribed in advance of the …

Jefferson and Washington monuments

David Baugh on Voir Dire

Jamison KoehlerEvidence, Law Practice

David P. Baugh was one of the speakers at a Virginia Trial Lawyers Association CLE I attended yesterday.  Baugh is perhaps best known for defending the free speech of a Ku Klux Klan member in a trial that resulted in the U.S. Supreme Court case of Virginia v. Black, and, surprise, surprise, he turns out to be a dynamic and …

U.S. Capitol building

On Human Memory and Eyewitness Testimony

Jamison KoehlerEvidence

Many years ago, as a student at the University of Freiburg in Germany, I went with an American friend to West Berlin to sightsee.  We went to a bar one night in which we were taken for some money by the bar’s establishment.  The two of us were so embarrassed by the whole thing (we couldn’t believe we had fallen …

Michael P. Malone’s Other Victims

Jamison KoehlerEvidence

I have written a number of entries over the last couple of months about the case of Donald E. Gates, a man who was imprisoned for 27 years for a crime the evidence now shows he did not commit.  Gates was convicted in large part on the basis of false testimony by FBI analyst Michael P. Malone. Donald Gates, as …

Listening to the Witness on Cross-Examination

Jamison KoehlerEvidence, Law Practice

This guy has his eye put out in an accident.  He can’t afford a glass eye, so the eye doctor puts in a fake eye made of wood instead. The guy is very self-conscious about his wood eye, but finally his friends talk him into joining them at a dance.  It is time, they say, for him to get back …