The “attorney-client privilege” protects confidential communications between a client and their attorney. As an exception to the general rule that all relevant facts should be available in the truth-seeking process, the purpose of the privilege is to encourage clients to be open and honest with their lawyers. The privilege belongs to the client, not the attorney. It can cover oral, …
The first question in any case in which the legality of a Fourth Amendment search is being challenged is when the seizure occurred. The next question then becomes: What did police officers know at the time of this seizure? If the facts known to them constituted either reasonable suspicion or probable cause, then the seizure was legal. If there was …
“High crime area.” Police officers invoke this phrase all the time. Like “furtive movements, “suspicious bulge” or “excited utterance, it is a legal sounding phrase they use to justify what might otherwise be an illegal detention. Police include it in their toolkit of phrases to throw out when drafting a police report or testifying on the stand. The phrase was …
A defendant can consent to a Fourth Amendment search or seizure, thereby obviating the need for a warrant. A defendant can limit the scope of the consent – as in, “you can search the living room but not my bedroom.” A defendant can withdraw consent at any time. And the assertion of any of these rights cannot be used …
Absent a valid exception, “searches and seizures” without a warrant are presumptively unreasonable under the Fourth Amendment. As one exception to the warrant requirement, the “plain view” doctrine allows police officers to seize evidence without a warrant if (1) the officers are lawfully present in a location, (2) they observe the contraband in plain sight, and (3) the incriminating nature …
The Victims of Violent Crime Fund (VVCF) in D.C. provides financial assistance to victims of violent crimes and their families. Funded primarily by court-ordered fees collected from people who are convicted of crimes in the District, the VVCF can reimburse people for funeral and burial expenses, medical and mental health care, lost wages and, for domestic violence victims, temporary shelter. …
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 Unable to confront his accuser at trial, Sir Walter Raleigh was convicted of treason in 1603. Outrage over the circumstances of his trial is believed to have played …
Hearsay is presumptively unreliable. That is why the law makes it so difficult to introduce hearsay into evidence. McCormick on Evidence § 244 refers to the “tale of a tale.” With the out-of-court witness not under oath and not subject to cross-examination, the major problem with this “story out of another man’s mouth” is that the party against whom …
According to the “independent justification” requirement, an order to leave public property must be given by a person with authority based on some established policy, rule or regulation. Otherwise, the government cannot prove the elements of the criminal offense of unlawful entry. *** Dr. Derek J. Morris was attempting to file a pro se petition for a writ of certiorari …
According to recent opinion issued by the D.C. Court of Appeals, Darrell Jones v. United States, __ A.3d __ (D.C. 2025), the defense must prove “incapacitating intoxication” in order to negate the mens rea element of a criminal offense. ***** “Voluntary intoxication” is generally not a viable defense to a criminal charge in Washington, D.C. As Joshua Dressler puts it …
A mistrial, the Court held, cannot be declared over defense objection unless “manifest necessity” requires it. A hung jury is one example of manifest necessary. The interruption of trials that were underway when the pandemic first hit was another.
To “hold or detain somebody in the context of the District’s kidnapping statute . . . means to detain them for a substantial period of time, so that the perpetrator could fairly be described as holding another captive like a hostage or a prisoner.”
Although police officers are not required to read the Miranda rights verbatim, any editorializing risks confusing the suspect, thereby nullifying the warning.
“Confidential location.” An officer utters these two words in a drug case, and the court automatically shuts down all related cross-examination.
It was hard to argue that there was insufficient evidence to convict Larson-Olson of unlawful entry when recordings showed defendant struggling with police.
When is a person seized for Fourth Amendment purposes? When is a piece of property abandoned such that there is no longer reasonable expectation of privacy?
When I say how good Emma would be at the practice of law, her mother — my little sister — points out that Emma is really an academic at heart.
According to recent D.C. Court of Appeals decision, “possesses” stolen property refers to the continuing act of being in possession of the property, not the act of taking possession at the time of acquisition.
According to the “innocent possession of a firearm” defense in D.C., it is permissible to use in self-defense what might otherwise be an unlawful firearm.
According to the 6th Amendment, the lawyer who accepts representation in a criminal case must affirmatively assist with the defense, thereby advancing it.
Criminal defendants have a constitutional right to confront their accusers. In D.C., however, this right does not necessarily extend to recross examination.
All over the District, young black men are lifting their shirts to show their waists as the unmarked cars cruise past. This is because of the “jump out” cops.
Even if officers had legal basis for searching the car based on the fact that POCA is an arrestable offense, they still did not have authority to search box.
A seasoned criminal defense lawyer was replaced by someone who had never before tried a criminal case. Not surprisingly, things did not go well for defendant.
For a threat to be unprotected by the First Amendment, the prosecution must prove that the defendant subjectively understood that the statement could be perceived as threatening.
In Mashaud v. Boone, the D.C. Court of Appeals limited the scope of unprotected speech under District’s stalking statute to threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.
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.
Police had the requisite legal basis – reasonable suspicion – to assume that one of four people present after gunshots were heard was the shooter.
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.
Telling someone that you will “slap” his/her “bitch ass” is threatening on its face. But criminal threats require the ability to follow through.
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.
Although a person can always revoke consent to a warrantless search, such a withdrawal of permission must be clearly and unequivocally communicated. So held the D.C. Court of Appeals in Ford v. United States.
There is a “buyer’s agent” defense in D.C. after all – at least with respect to drug distribution charges involving marijuana.
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.”
For purposes of the misdemeanor sexual assault of minors statute, the D.C. Court of Appeals refused to limit the definition of “touch” to the act of “feeling” with one’s tactile senses — through, for example, the use of one’s fingers, hands, genitals or other sensory organs.
According to D.C. Court of Appeals decision in Odumn v. United States, “a landlord may not prohibit a tenant from inviting a third party onto leased premises for a lawful purpose, nor may the landlord prohibit such third party from entering or exiting the property through the property’s common space.”
According to recent D.C. Court of Appeals opinion, Foster v. United States, D.C. Housing Authority residents cannot be barred from accessing areas covered by their leases.
In Weems v. United States, 191 A.3d 296 (D.C. 2018), the D.C. Court of Appeals defines “possession, custody, or control” for purposes of Rule 16.
The evidence suggested that our client intended to exit the store, not damage property. There was also a question as to who actually broke the door.
In unlawful entry cases in which the defendant is charged with violating a DCHA barring order, the underlying order must be authorized by D.C. statute.
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.
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 court found in Rahman v. U.S. that remaining in a restaurant for 10 minutes after being asked to leave was sufficient to be found guilty of unlawful entry.
In Crawford v. D.C., the Court of Appeals confirmed that the Leaving After Colliding statute requires the government to prove mens rea.
I tried to argue a while back that, when it comes to D.C.’s statute on Threats to do Bodily Harm, parking enforcement officers should be considered to be particularly immune to threats. After all, they are used to dealing with angry people who have just found a ticket on their windshield. Such officers, I would assume, are also trained both …
D.C. Court of Appeals Judge Catharine Easterly writes what I think. The difference is that she finds the words that elude me. And the words she writes impact D.C. law. Her impact continues in Antoine Mayhand v. United States, 127 A.3d 1198 (D.C. 2015). The “excited utterance” exception to the hearsay rule is over-used. Prosecutors can get lazy: How hard …
The D.C. Court of Appeals has issued a number of opinions over the last couple of years in which it has refined the definition of “significant bodily injury” under D.C.’s felony assault statute. In Nero v. United States, for example, the court found that a bodily injury was significant when a bullet passed through the complainant’s bicep, causing “obvious pain …
And sometimes the D.C. Court of Appeals gets it just right. For years, the Office of the Attorney General in D.C. has argued that stationhouse videos of suspects in DUI cases are not “discoverable”; that is, that they do not need to be preserved and turned over to the defense under D.C. Superior Court Rule of Criminal Procedure 16. Although …
You are allowed to use a reasonable amount of force to protect property. This is true “regardless of any actual or threatened injury to the property by the trespasser.”
In Cheeks v. United States, a case issued a couple of months ago, the D.C. Court of Appeals interpreted the “interfere” provision of D.C.’s Assault of a Police Officer (APO) statute. (It is illegal under this statute to assault, resist, oppose, impede, interfere with or intimidate a police officer who is performing his official duties, and the court has had …
The Assault on a Police Officer (APO) statute is so broad that the D.C. Court of Appeals has had to issue multiple opinions to interpret it. In Edwin Cheek v. United States, 103 A.3d 1019 (D.C. 2014), an opinion it issued today, it interpreted that portion of the law that makes it illegal to “interfere” with a police officer while …
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 testifies to while on the stand – is generally inadmissible. If it is an out-of-court statement offered for the truth of the …
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, you have no way of proving it. And then there is Vaughn v. United States, 93 A.3d 1237 (D.C. 2014). With an …
You have the right to use a reasonable amount of force in self-defense assuming that (1) you actually believe that you are in imminent danger of bodily harm and (2) you have reasonable grounds for that belief. The question is not whether the use of force appeared to be necessary when looking back on the incident. The question instead is …
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). Marvin Holmes was convicted of stealing two shirts from the Saks Fifth Avenue store in Friendship Heights. The store detective testified at …
In law school, we learned the difference between a subjective standard in defining a mental state and an objective one. The subjective standard focuses on the defendant’s actual state of mind. With the objective standard, it is how a reasonable person in the same position would feel. Most criminal statutes seem to use the objective standard. This simplifies things for …
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 …
The state of the law with respect to reasonable suspicion, anonymous tips and car stops is already pretty muddy. Now, with Navarette v. California, 572 U.S. ___ (2014), the Supreme Court has just made it worse. A woman calls 911 to report another car for running her off the road. The woman provides the time and approximate location of the …
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 …
When the two defendants opted for trial, rejecting a deferred sentencing agreement that had been offered by the government, Judge Brian Holeman may have been doing them a favor when he warned them that they would face certain jail-time if convicted. After all, that is exactly what happened. At the same time, as the D.C. Court of Appeals held yesterday …
During the defendant’s opening statement at trial, Denardo Hopkins’ lawyer got up in front of the jury and conceded that this client was guilty of felony drug dealing charges. The issue the D.C. Court of Appeals faced in Hopkins v. United States, 84 A.3d 62 (D.C. 2014), was this: Did this admission constitute a guilty plea such that the judge …
The common law distinction between “general intent” and “specific intent” offenses doesn’t work. This is what the D.C. Court of Appeals emphasized once again in Adam Ortberg v. United States, 81 A.3d 303 (2013), a recent case dealing with the required mental state for unlawful entry. The defendant in Ortberg was charged with unlawful entry after he walked past a …
The Public Defender Service (PDS) has just begun a blog — the PDS Criminal Law Blog — that reviews recent D.C. Court of Appeals opinions. With Samia Fam, Nancy Glass, Jackie Frankfurt, and a handful of other public defenders sharing responsibility for the writing, the blog will certainly have some heavy hitters behind it. The most recent entry covers Vines …
In Pennsylvania, the offense is known as endangering the welfare of a child. In D.C., it is cruelty to children and, as the D.C. Court of Appeals pointed out recently in Mitchell v. United States, 64 A.3d 154 (D.C. 2013), you cannot read too much into the title of a criminal offense: The title is of use in interpreting a …
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 …
At the Defender Association of Philadelphia, the office policy in multi-defendant cases was to represent the defendant with the most serious charges, the worst fact pattern, and the worst legal posture. The other defendants would then be farmed out to court-appointed lawyers. Although nobody ever explained the rationale behind this policy to me, I assumed it was based on a …
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 …
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 that interprets that rule. Instead, you have to go directly to the case law or statute. This makes things unnecessarily burdensome. What …
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.
Although you might think that invoking your right to remain silent and invoking your right to a lawyer would have the same legal effect, you would be mistaken. In fact, if ever forced to choose, you should always ask for a lawyer. Police can resume interrogation after a period of time when you invoke your right to remain silent. But …
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 …
Courts seem to be bending over backwards to avoid basing decisions on Arizona v. Gant. In an opinion issued last month by the D.C. Court of Appeals, for example, the defendant was pulled over for a minor traffic offense. The defendant was ordered out of the van and frisked, with the officer finding no weapons. The officer then handcuffed the defendant …
Without more specifics, the defendant’s movements were insufficient to arouse a reasonable fear in the officer that Mr. Jackson was presently dangerous.
As recent D.C. case law demonstrates, the distinction between general and specific intent crimes is both simplistic and potentially misleading.
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.
Crawford held that a “testimonial” statement can only be admitted if: (1) the government can prove that the witness was unavailable to testify, and (2) the defendant has had a prior opportunity to cross-examine that witness.
Right to confrontation applies to testimonial statements of a non-appearing witness unless (1) the witness is unavailable and (2) the witness was subject to prior cross-examination.
The Jencks Act,18 U.S.C § 3500, requires the prosecution to turn over any “statement” of a prosecution witness that relates to subject matter at issue.
The general rule on “bolstering” is that you are not allowed to sing the praises of your own witness until that witness has been challenged or impeached.
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.”
Previously convicted of a felony, Michael Myers was arrested while carrying a garbage bag that contained the disassembled parts of a shotgun. Was he guilty of being a felon in possession of a firearm?
Driving without a license has long been a strict liability criminal offense in D.C. That is, in order to secure a conviction for this offense, the government need only prove that you didn’t have a driver’s license at the time you were driving. It does not need to prove any type of criminal intent or guilty knowledge; in this case, …
“Readily available” is defined in Washington, D.C. as being in close proximity or easily accessible during commission of crime of violence/dangerous crime.
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 …
If Brady provides a constitutionally protected right to information, legislatures in this country should provide a mechanism to enforce this requirement.
According to D.C. Court of Appeals decision in Wynn v. United States, the actions of police officers responding to a crime scene do not fall within the definition of “due administration of justice in any official proceeding.”
The standard for proving operating while impaired and driving under the influence is the same; specifically, impaired driving ability to slightest degree.
According to U.S. v. Taylor, police must have reasonable belief for suspecting criminal activity in order to justify a warrantless car search under Gant.
The problem with using a canon of statutory interpretation to justify a legal opinion is that you can usually find some other canon to arrive at the exact opposite conclusion. For example, to support its recent holding in In Re D.M., 47 A.3d 539 (D.C. 2012), the D.C. Court of Appeals used the rule that, whenever possible, different provisions within a …
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 …