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, …

Although police officers are not required to read the Miranda rights verbatim, any editorializing risks confusing the suspect, thereby nullifying the warning.

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?

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 …

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.

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.