On character and grace

Trump at Resolute Desk

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.

On the “missing evidence” jury instruction in Howard v. US

DC Court of Appeals

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 from non-evidence.”

Getting the rules of evidence wrong in HBO’s “The Undoing”

Nicole Kidman on witness stand

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 moving. But you need to get certain basics correct.

Hearsay through the eyes of our law student

D.C. criminal defense attorney

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.

“Present Sense Impression” in Sims v. United States

D.C. criminal defense lawyer

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

examination graffiti

If the government introduces new evidence during re-direct examination, the defense has a constitutional right to question the witness about that new evidence.

The difference between a leading and non-leading question

“What is your name?”  That is a non-leading question.  Compare that with “Your name is John Smith, isn’t it?” That would be leading.  It basically tells the witness what his answer should be. 

Can a witness’s own statement be hearsay?

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.

Can hearsay be used to impeach?

D.C. criminal defense lawyer

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. 

Are depositions hearsay?

graffiti 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.