When I last wrote about my niece Emma, she was an all-Ivy scholar and athlete, the leading scorer and captain of her college soccer team. Since that ground-breaking blog entry of 2012, Emma has played professional soccer. She is still, as I described her back then, pretty, smart, personable and modest, a woman who not only knows how to take …
Antonio Lucas robbed a man in Maryland. He then traveled to D.C. where he was arrested. Mr. Lucas could not be charged in D.C. with the felony offense of robbery. Because that crime had occurred in a different jurisdiction. Instead, he was charged with — and ultimately convicted of – Receiving Stolen Property in violation of D.C. Code § 22-3232. …
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 …
D.C. Superior Court judges do not typically allow re-cross examinations. Yes, you have a constitutional right to confront witnesses against you in a criminal proceeding. But, with judges enjoying widespread discretion to oversee the proceedings, this right is not without its limits. The defendant in Gabriel Sanchez v. United States, 287 A.3d 1241 (D.C. 2023), was charged with Assault with Intent to Kill …
They are known on the street as the “jump out” cops. They cruise poor parts of town in unmarked cars, one car following the other. There are 3 or 4 officers in each car. They pull up and jump out at the slightest hint of criminal activity. Sometimes they see a suspect walking with a lopsided gait or swinging only …
In Arizona v. Gant, the U.S. Supreme Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest (and therefore without a warrant) under one of only two scenarios. The first scenario is that officers have a reasonable belief that the arrestee might access the vehicle at the time of the search, thereby …
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 …
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 …
And sometimes the D.C. Court of Appeals gets it right. A police officer sees a woman driving a van with what he believes are illegally tinted windows. When he activates his lights for a traffic stop, the van pulls over immediately. The van begins to “rock” with lots of “shaking,” and when the officer walks up to the driver’s side …
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 …
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 in Pennsylvania. The Jencks Act, 18 U.S.C § 3500, requires the prosecution to turn over to the defense any “statement” of a witness …
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 are three things you need to know about the credibility of a witness: bolstering, impeachment, and rehabilitation. Impeachment and rehabilitation are straight-forward. …
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 …
Driving without a license has long been a strict liability 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, that …
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 …
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 …
A person is guilty of obstruction of justice in D.C. if that person “corruptly or by threats of force” obstructs or impedes — or attempts to obstruct or impede — “the due administration of justice in any official proceeding.” The question decided in Cotey Wynn et al v. United States, 48 A.3d 181 (D.C. 2012), an opinion issued last month …
D.C. Superior Court judges, prosecutors, and defense attorneys have traditionally treated the criminal offense of Operating While Impaired (OWI) as if it were a lesser-included offense of Driving Under The Influence (DUI). Although a specific standard for OWI cannot be found in either the statute or case law, judges have repeatedly stated that in order to secure a conviction for …
In Arizona v. Gant, the U.S. Supreme Court helped slow a continuing trend in the chipping away of Fourth Amendment protections. For years, most jurisdictions allowed police officers to search any car whose occupants had been arrested, even when the traditional justifications for the warrantless car search –officer safety and preservation of evidence – were absent. Typical of the resulting practice …
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 …
The prosecutor can hardly blame me for being skeptical. I ask her about one of the counts that was dropped from the complaint, and she tells me it was because the complaining witness said a few things to her that didn’t add up. “That’s Brady, then,” I tell her. I feel a little badly because she is young and I …
The defendant is charged with armed robbery. He and the government reach agreement on a plea deal in which the government agrees to ask for no more than 10 years of incarceration. In a memorandum submitted to the judge before sentencing, the government then violates that agreement by asking the judge to impose 20 years. It is the judge, not …
I have never been a fan of D.C.’s “threats to do bodily harm” statute. For one thing, it criminalizes behavior that is already covered under the assault statute. After all, is there any real difference between threatening to hurt another person and intending to frighten someone? For another, with almost identical language in both the felony and misdemeanor threats statutes, …
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 …
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 …
The disciplined judicial mind should not be subjected to any unnecessary strain;…the most austere intellect has a subconscious. How great is this language? Although the language dates back to 1972, it did not come to my attention until it was quoted in a opinion issued this month by the D.C. Court of Appeals, Plummer v. United States, ___A.3d ___, ___ …
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 …
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, …
I have often said that you can explain everything in life through a Seinfeld episode. And while there is no single case that does for criminal law what Seinfeld does for life, Terry v. Ohio comes pretty darn close. It is not that Terry is my favorite case. After all, it expanded the scope of constitutionally permitted searches. But, …
Your client is 19 years old. She weighs 105 pounds and stands under five feet tall. Having been arrested for a minor offense, she sits handcuffed in a room surrounded by police officers. Her eyebrow is bleeding from a cut she suffered from being thrown up against a chain link fence. All the police officers are male. They are …
Although you can be found guilty of aiding and abetting flight in a motor vehicle, there was insufficient evidence in this case to sustain the conviction.
The right to cross-examine witnesses is one of the defendant’s most important trial rights. And, among the areas for cross-examination, what could be more important than bias? An inability to accurately perceive events could result in an honest mistake. Bias suggests that the witness might be deliberately coloring the testimony. In Blades v. United States, 25 A.3d 39 (D.C. 2011), …