Years ago, back when I was a junior public defender in Philadelphia and believed almost everything clients told me, I interviewed a client charged with being a felon in possession of a firearm. “I was walking down the street that day,” the client told me. “As I walked by this playground, I saw a gun in the bushes close to …
The brother of my court-appointed client takes me from the courtroom into the hallway to dress me down for a legal decision I just made on his brother’s behalf. The brother cites a legal platitude that, though true, had nothing to do with the decision I just made. “You and I both know I am right on this one,” he …
It is always painful to see a criminal defendant replace a good public defender or court-appointed lawyer with an inexperienced one. Because you don’t value what you don’t pay for. This is what happened in Timothy Dugger v. United States, 295 A.3d 1102 (D.C. 2023), an opinion issued recently by the D.C. Court of Appeals. A smart and seasoned criminal …
From the Latin for “elsewhere,” an alibi defense is based on the physical impossibility of a defendant’s guilt: the defendant could not have committed the crime because he or she was somewhere else at that same time.
The defendant “poked” the complainant somewhere on the body after having been specifically admonished not to do so. Such an “offensive touching” constituted a criminal assault.
According to the “Rule of Lenity,” a court should construe any ambiguity in the language of a criminal statute in favor of the defendant.
Although “claim of right” is a valid defense to robbery and other theft offenses, the defense fails when the defendant takes more than the property whose ownership is in question.
Under the ‘forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying.
Bias can be “a favorable or friendly feeling toward a party.” It can also be hostility toward someone, a motive to lie out of self-interest, and/or corruption.
Although a court may take “judicial notice” of commonly known facts, the government must still prove every element of a criminal offense beyond a reasonable doubt.
It is reversible error for the trial judge to prohibit the defendant from testifying that he was acting in self-defense when the court had already concluded that the arresting officer had not used excessive force.
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.”
Everything you need to know about clearing, expunging or sealing your criminal record in anticipation of background check for employment, adoption, immigration, volunteer opportunity or gun license.
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 …
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 …
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 …
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 …
You are sitting in a legally parked car on the side of the road minding your own business when a police car pulls in directly behind you and activates its overhead lights. How many people would feel that they were perfectly free to drive away at this point? Anybody? Anybody at all? Because this is the standard for determining whether …
Police questioning results in “testimonial” evidence if the primary purpose of the interrogation is “to establish or prove past events potentially relevant to later criminal prosecution.”
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 …
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 …
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 …
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 …
The U.S. Supreme Court has made such a mess of the Confrontation Clause line of cases that the D.C. Court of Appeals declared today that it really doesn’t know what to do. So it decided to do the right thing instead. In Robert Young v. United States, 63 A.3d 1033 (D.C. 2013), the D.C. Court of Appeals decided to essentially …
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, …
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 …
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 …
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 …
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 …
The “corroboration rule” requires the government to introduce “substantial independent evidence” establishing the trusthworthiness of a confession before that statement can be submitted to the jury.
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 …
In law school and in preparing for the Bar Exam, we were taught the distinction between general intent and specific intent crimes. If it is a general intent offense, the government must prove only that the defendant intended to take the physical action that resulted in the harm; that is, that the defendant’s actions were not the result of a …
One of the problems with bad law is that it leads to even worse law. I have never been a big fan of the U.S. Supreme Court’s decision in Illinois v. Wardlow, which held that being in a “high crime” area (what part of any U.S. city does not have a lot of crime?) and running away at the sight …
If constructive possession is a legal fiction, then joint constructive possession is a double legal fiction. It is not only that you do not actually possess the article in question (and by actual possession, I mean physical occupancy or control over the property). It is that other people – it could be one person, it could be four other people …
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 doesn’t do many criminal cases, you are still somewhat taken aback by his comment. Robinson? Are you kidding me? Standing there with …
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 accurate definition I have ever seen of what constitutes bias. McCormick continues: “[B]ias, or any acts, relationships, or motives reasonably likely to produce …
You buy a brand new axe. The axe is composed of two parts, a handle and a blade. You replace the handle after a couple of years and then the blade a year or two after that. The question we all looked at in our high school/college philosophy class: Is this the same axe? This is the type of question …
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 …
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 …
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 …
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 …
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 …
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 …
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 …
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 …
“[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the …
My client was walking along one night in Philadelphia when he was jumped by three men who took his money and firearm. When he went to the police to report the robbery, the police ran his record. They then arrested him for being a felon in possession of a firearm. In other words, he went into the police station as …
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 …
“That’s as low as my office is willing to go for this type of offense.” This is what the prosecutor tells me. We are talking about the number of hours of community service my client would be required to perform under a plea bargain, and we have deadlocked. This is the only outstanding issue. The difference between us is a …
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. …
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, …
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 …
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 …
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 …
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 …
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 …
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 …
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 …
Assuming you did nothing to encourage or instigate the activity, there is nothing illegal about being present during the commission of a crime. There is also no duty, upon coming across a crime in progress, to prevent that crime from occurring. This is true even if you are with people who are actually committing the crime. These principles lay …
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, …
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 …
A couple of years ago, a Court of Common Pleas judge in Philadelphia banned me from her courtroom for life. Both the stenographer and her law clerk looked at me with sympathy when the judge issued the edict. Maybe they thought I would be upset. In fact, running a list in this judge’s courtroom was viewed to be a …
I will remember this. This is what the prosecutor promises you. In another context, she could be intending this as a threat. As in: I will get you back for this. In this case, she is trying to entice you into making a concession, and she is putting you on notice that she has a long memory. She …
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 …
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 …
The innocent or momentary possession of a firearm or any other type of contraband is a valid defense in Washington, D.C.
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 …
We are having trouble with the sliding door on our mini-van. I take it back to the Toyota dealership shop a couple of times and spend a fortune to get it fixed but there still seems to be a problem with it. Finally, when I complain about having to fix it once again, the mechanic swears to me that …
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 …