Jefferson Memorial

Immediacy of response, not threat, in self-defense case

Jamison KoehlerDefenses to Criminal Charges, Legal Concepts/Principles

Words in the law do not always mean what their dictionary definitions say they mean. With respect to a prior consistent statement, for example, it is not really, as suggested by the rule, that such a statement must be offered to rebut a charge of “recent fabrication.”  Instead, it is “only that the alleged contrivance be closer to the trial …

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 …

Wayne LaFave on “Motive”

Jamison KoehlerLegal Concepts/Principles

Motive.  It is really big on TV shows.  At the same time, if you listen to Wayne LaFave, it is completely irrelevant when it comes to substantive criminal law:  The government is not required to prove motive in order to secure a conviction. The New Oxford American dictionary defines “motive” as “a reason for doing something, esp. one that is …

Actus Non Facit Reum Nisi Mens Sit Rea

Jamison KoehlerLegal Concepts/Principles

Translated into English, actus no facit reum nisi mens sit rea means that “an act does not make one guilty unless his mind is guilty.” In other words, it is not enough for the government to prove a physical part of a crime; that is, an act or an omission to act.  The government must also prove a mental part …

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 …

Why The Truth Doesn’t Matter At Trial

Jamison KoehlerLegal Concepts/Principles

One of my favorite episodes from the old T.V. show “All In The Family” involved a situation in which an African-American repairman came to the Bunker household to fix a kitchen appliance.  Archie Bunker, the right-wing bigot, and his leftist, hippie son-in-law each remembered the incident differently, and the show began with two flashbacks in which each man re-told the …

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

On the Crucible of Cross-Examination

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles

It happens perhaps most often in domestic violence cases that the complainant fails to show up on the morning of trial. The government would have you believe this is because the complainant fears for his/her safety, and this might sometimes be true. More often, it is because the complainant has reconsidered having the lover, spouse, or family member locked up …

U.S. Capitol building

Further Guidance on Significant Bodily Injury in Quintanilla v. U.S.

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

The D.C. Court of Appeals took another step last week in defining what up until recently has been a poorly defined term:  the “significant bodily injury” that is required in order for the government to prove felony assault. Although the appellant in Fidel Quintanilla v. United States, 62 A.3d 1261 (D.C. 2013), was convicted of multiple felony offenses, including robbery, …

D.C. skyline

Unlawful Entry, Criminal Contempt, Double Jeopardy, and Prior Bad Acts

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

When people talk about evidence being admitted at trial, they tend to think in terms of physical evidence:  guns, drugs, documents, fingerprints, DNA, that type of thing. Sometimes you need to remind them that oral testimony alone – someone getting up on the stand and testifying to what he or she saw – can also serve as the basis for …

U.S. Capitol building

D.C. Court of Appeals on “Furtive Gestures”

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

Sometimes you need to go outside your own jurisdiction to find the right language in support of an argument.  For years I have been looking for language that captures the problems — the ambiguity and the over-inclusiveness – posed by use of the police officer’s favorite catch-all phrase, “furtive gestures.”  Today I found what is probably the best language I …

American flag

Constructive Possession: Intent Required, Not Just Proximity and Knowledge

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

That a controlled substance can be possessed constructively as well as actually is a court-made decision. As Judge Ruiz put it in her concurring opinion to Rivas v. United States, 783 A.2d 125 (D.C. 2005), the “doctrine of constructive possession is a judicially developed theory of liability designed to be a ‘proxy’ for actual possession.” The government needs to prove …

D.C. skyline

Lee v. United States: Mistaken Jury Instructions on the “Defense of Others”

Jamison KoehlerDefenses to Criminal Charges, Legal Concepts/Principles, Opinions/Cases

The D.C. Court of Appeals was apparently feeling charitable. In Adrian Lee v. United States, 61 A.3d 655 (D.C. 2013), a decision issued last week, the Court bent over backwards to justify and explain mistaken jury instructions issued by the trial judge. Even as it reversed him. Adrian Lee was convicted of voluntary manslaughter and of carrying a dangerous weapon …

D.C. skyline

Harrison v. U.S.: Reasonable Doubt Through Too Many “Interconnected Inferences”

Jamison KoehlerLegal Concepts/Principles, Opinions/Cases

Yes, they record your personal phone calls from prison. Yes, they have someone listen to those tapes. And, yes, they sometimes find something on those tapes to use against you. There is usually a voice recording that periodically reminds both parties — the inmate and the family member or friend he is speaking with – that the conversation is being …

D.C. skyline

Acta Exteriora Indicant Interiora Secreta

Jamison KoehlerLegal Concepts/Principles

Today’s legal maxim is not particularly eloquent, in either Latin (acta exteriora indicant interiora secreta) or English (“outward acts indicate the thoughts hidden within”). But I include it today because it deals with intent, which is a key concept in criminal law. Men rea (or “state of mind”) is an element of most criminal offenses. And since the finder of …

Jefferson Memorial

Defining “Readily Available” in Clyburn v. U.S.

Jamison KoehlerFirearms/Weapons, Legal Concepts/Principles, Opinions/Cases

You can be sitting at work and “constructively possess” something tucked away in your bedroom closet at home. It is not whether you actually physically possess the piece of property at the time; it is whether you have the “power and intent” to control it.  And you are presumed to both know about and have the power to control the …

Once Again, No Consequences for Prosecutorial Misconduct

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

On the morning of trial, the prosecutor finds out that the testimony provided by a police officer at the preliminary hearing was inaccurate. Although the prosecutor himself is not planning to call this particular police officer to testify at trial, he knows that the defense attorney is. So what does prosecutor do?  Does he immediately contact the defense attorney to …

U.S. Capitol building

Actus Me Invito Factus Non Est Meus Actus

Jamison KoehlerLegal Concepts/Principles

After a guest post by my brother turned out to be one of the most popular pages on this site, I had hoped that the classics scholar was going to be a regular contributor on this site. Alas, my no good brother has turned out to be a complete slacker with better ways to spend his time. So I am …

U.S. Capitol building

Enforcing Brady v. Maryland: Toward An “Open File” Discovery Requirement

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

A constitutional right without any way of enforcing that constitutional right is hardly any right at all.  That’s a pretty accurate description of the government’s obligations under the Due Process Clause of the U.S. Constitution and Brady v. Maryland to turn over exculpatory information to the defense. Relying almost entirely on the goodwill and integrity of the individual prosecutor assigned …

Aerial view of DC

What Is “Unprovoked Flight” Under Illinois v. Wardlow?

Jamison KoehlerLegal Concepts/Principles, Opinions/Cases

Flight hasn’t always been such a terrible thing. At one time, courts seemed to recognize that there might be all sorts of reasons an innocent person might want to distance himself from the presence of a police officer. Not all contacts with police officers are Norman Rockwell positive, particularly for certain members of our society. And, absent a reasonable suspicion …

Jefferson Memorial

In Re W.R.: Warrantless Search During a Custodial Arrest

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

Jejomar Untalan has been busy.  I reported last week on his successful appeal in In re S.B.  This week the D.C. Court of Appeals issued yet another decision bearing Untalan’s name as the appellant’s attorney:  In re W.R.,  52 A.3d 820 (D.C. 2012).  This time, however, Untalan was unsuccessful. W.R. was approached during the school day by a police officer …

Jefferson Memorial

California v. Hodari D: A Criminal Defense Lawyer’s Complaint

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

California v. Hodari D, 499 U.S. 621 (1991), is a lousy opinion. It used to be that a person was seized for Fourth Amendment purposes the moment his or her liberty was “restrained” by “some physical force or show of authority” by a police officer. This was the standard established by Terry v. Ohio, the U.S. Supreme Court case that lays …

U.S. Capitol building

Thorne v. U.S.: You Can’t Penalize the Defendant for Exercising His Constitutional Rights

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

It is a challenge for every criminal defense attorney. You want to do everything you can to put the government’s case to the test. At the same time, recognizing that you still might not win, you don’t want to antagonize the judge such that the judge decides to penalize your client at sentencing. Because, after all, you need to take …

U.S. Capitol Building

Dawkins v. United States: How Far Must A Party Go To Preserve Issue For Appeal?

Jamison KoehlerLegal Concepts/Principles, Opinions/Cases

In an opinion issued last week, Dawkins v. United States, 41 A.3d 1265 (D.C. 2012), the D.C. Court of Appeals addressed the issue of how far a party must go in order to preserve an issue for appeal.  The Court also confirmed the long-standing principle that the potential bias of a witness is always relevant in assessing a witness’ credibility. …

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, …

Jefferson Memorial

Morgan v. U.S.: Inconsistent Evidence at Trial and “Show Cause” Hearing

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

One of the things that surprised me when I first began to practice criminal law was the notion that you could be acquitted of a particular offense at trial and then have that very same criminal charge – the one on which you were just found not guilty – serve as the basis for being found in violation of probation …

Jefferson Memorial

Simms v. U.S.: On the Pre-Trial Presumption of Prosecutorial Vindictiveness

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

David Simms was charged with possession of marijuana. On the day of his scheduled trial, the government announced that it was ready to proceed on the charge. Defense counsel stated it was still awaiting discovery on a few matters and, after passing the matter a couple of times, the court eventually postponed the trial so that the discovery issues could …

Jefferson and Washington monuments

Open Guilty Plea = Bad Case + Fair Judge + Unreasonable Prosecutor

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles

When faced with a really bad case, one option is to work out a favorable plea agreement with the government to try to mitigate consequences for the client. Another frequently overlooked option is to do an open guilty plea. In fact, the Criminal Practice Manual put out by the D.C. Public Defender Service devotes an entire chapter to guilty pleas …

Entrapment in D.C.: The Legality of Recent Decoy Operations

Jamison KoehlerCriminal Procedure, Defenses to Criminal Charges, Legal Concepts/Principles

Your client is heading home, minding his own business, when he comes across what appears to be a homeless man sleeping on a bench at the metro station. Sticking out of the man’s coat pocket is a shiny new I-Phone. In a moment of weakness, your client grabs the I-Phone and is immediately taken to the ground by both the …

Jefferson Memorial

Unauthorized Use of a Motor Vehicle: Applying the Notion of a “Grace Period”

Jamison KoehlerDefenses to Criminal Charges, Legal Concepts/Principles, Other Criminal Offenses

  The judge doesn’t like my idea of a “grace period.”  In fact, he chuckles when I propose it:  “I have never seen any case law on that,” he says. I was not trying to be funny. My client has been charged with both unlawful entry and unauthorized use of a stolen car in which he was a passenger. Unlawful …

U.S. Capitol building

On the Criminal Defenses of “Justification” and “Excuse”

Jamison KoehlerCriminal Procedure, Defenses to Criminal Charges, Legal Concepts/Principles

  How can you not love the criminal defenses? With the government burdened with proving every element of an offense beyond a reasonable doubt, one criminal defense strategy is to challenge the identity of the perpetrator. Yes, says the defense lawyer in an alibi defense. I am sure the crime was committed, and wasn’t it a particularly egregious one at …

American flag

Ray Koehler on “Fiat Iustitia Ruat Caelum”

Jamison KoehlerLegal Concepts/Principles

  Guest Entry By Raymond Koehler My initial enthusiasm at being invited to write a piece for my brother’s law blog quickly turned to concern.  I am a Latin teacher, not a lawyer, and although I often find myself citing my brother in defense of my subject before the incoming hordes of freshmen – twenty-seven to a class – I …

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, …

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Confrontation Clause Be Damned: D.C. Continues to Use Surrogate Witnesses in DUI Cases

Jamison KoehlerCriminal Procedure, DUI and Driving Offenses, Legal Concepts/Principles

  Michael Bruckheim was scheduled to cross-examine Lucas Zarwell, the chief forensic toxicologist in D.C., and a group of DUI lawyers had gathered outside Room 116 yesterday afternoon shortly before 2:00 pm. Zarwell testified before city council last May that urine samples taken by police to test suspected drunk drivers are not reliable enough to accurately measure a person’s blood …

I Hate Latin: Res Ipsa Loquitur

Jamison KoehlerLegal Concepts/Principles, Miscellaneous

  I only took two years of Latin in High School. It was years before I actually admitted this to my children.  Because I often cited the Latin origins of a word, they assumed I was this great Latin scholar.  It was not until their education in the language began to overtake mine that I had to admit to them …

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 …

On Ashe v. Swenson: Double Jeopardy and Collateral Estoppel

Jamison KoehlerCriminal Procedure, Defenses to Criminal Charges, Legal Concepts/Principles, Opinions/Cases

Many laypersons suffer from misconceptions about the protections offered by the Double Jeopardy Clause contained in the 5th Amendment to the Constitution. As Blonde Justice pointed out in one of her funnier posts, for example, double jeopardy does not cover the situation in which the defendant is forced to show up twice for court appearances on the same charge.  Nor does …

U.S. Capitol Building

Self-Defense in a D.C. Assault Case

Jamison KoehlerAssault, Defenses to Criminal Charges, Law Practice, Legal Concepts/Principles

Self-defense is an affirmative defense to simple assault and other assault charges in D.C. Self-defense is the use of force to protect oneself, one’s family or one’s property from a real or threatened attack.  It is an affirmative defense, meaning that the defendant has the initial burden of raising it. In D.C., once the defendant has been able to introduce …