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

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… Read More

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

Someone was asking me the other day about the difference between direct evidence and circumstantial evidence. The D.C. Criminal Jury Instructions provide a very helpful explanation: There are two types of evidence from which you can determine what… Read More

What is a “Testimonial Statement” under Crawford v. Washington?

You know you are in trouble the moment the judge refers to “that Supreme Court case on confrontation.”  He adds: “Robinson I think it is called.” The judge is a highly respected senior judge.   Although you realize he… Read More

“Call My Accuser Before My Face . . .”

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… Read More

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

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… Read More

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

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… Read More

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

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… Read More

Bickering Over Basic Facts on Cross-Examination

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… Read More

The “Fruit of the Leading Poisonous Question”

We all know the phenomenon. The prosecutor asks a leading question directing the witness to exactly the answer the prosecutor wants. The court sustains our objection but the damage has already been done. The prosecutor re-phrases the question… Read More

Cue the Radiotape

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… Read More