“Past Recollection Recorded” versus “Refreshing Recollection”

“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… Read More

Laying the Foundation for an “Excited Utterance”

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

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 –… Read More

Imperfect Impeachment and Kamala Harris

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,… Read More

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

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… Read More

An Ethical Prosecutor Confronts Her Own Witness

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… Read More

Body Worn Cameras in D.C.: Watching Events Through the Eyes of Police

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… Read More

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

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… Read More

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

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… Read More

Koonce v. D.C.: Stationhouse Videos in DUI/OWI Cases Are Discoverable

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/DWI cases are not “discoverable”; that is, that they… Read More