Refreshing Recollection at a DMV Hearing

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… Read More

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

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… Read More

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

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,… Read More

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

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… Read More

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

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)…. Read More

Bronx Prosecutor Castigated for Withholding Exculpatory Evidence

According to the New York Daily News, a prosecutor in the Bronx failed to turn over exculpatory information to the defense in a rape case.  The evidence in question was an initial statement by the accuser that the… Read More

Refining the Definition of “Testimonial Evidence” under Crawford v. Washington

You take a worthwhile social goal – protecting domestic partners from abuse – and then you contort the U.S. Constitution to achieve that goal. In the days of Ohio v. Roberts, 448 U.S. 56 (1980), the testimony came in… Read More

The Duty to Disclose Includes the Duty to Preserve

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… Read More

Relevant = Material + Probative

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… Read More

McCormick on Evidence: Do the Exclusionary Rules Deter Illegal Conduct?

McCormick on Evidence first 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… Read More