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

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… Read More

Michigan v. Long Is Ripe for Reversal

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…. Read More

Jackson v. U.S.: Being Nervous Does Not Mean You Are Dangerous

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… Read More

Attempted Battery Assault in D.C. is a “Specific Intent” Offense

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… Read More

Henson v. US: Consensual Encounters and Unprovoked Flights under Henson v. U.S.

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… Read More

Interpreting “Joint Constructive Possession” in Tamara Smith v. U.S.

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… Read More

What is a “Testimonial Statement” under Crawford v. Washington?

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… Read More

Lazo v. U.S.: A Court’s Duty To Investigate a Jencks Act Violation

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… Read More

Mason v. U.S.: When Is A Prior Consistent Statement Admissible?

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… Read More

Longus v. U.S.: On Bias, Extrinsic Evidence, and the Collateral Fact Rule

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… Read More