Jefferson Memorial

McCormick on Evidence: Do the Exclusionary Rules Deter Illegal Conduct?

Jamison Koehler Evidence, Legal Concepts/Principles

McCormick on Evidence first 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 …

Jefferson Memorial

The Difference Between Direct and Circumstantial Evidence in D.C.

Jamison Koehler Evidence

Someone was asking me the other day about the difference between direct evidence and circumstantial evidence. The D.C. Criminal Jury Instructions provide a very helpful explanation: There are two types of evidence from which you can determine what the facts are in this case – direct evidence and circumstantial evidence. When a witness, such as an eyewitness, asserts actual knowledge …

D.C. skyline

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

Jamison Koehler Criminal Procedure, Evidence, Opinions/Cases

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 …

U.S. Capitol Building

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

Jamison Koehler Evidence, Opinions/Cases

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. …

U.S. Capitol building

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

Jamison Koehler Evidence, Legal Concepts/Principles, Opinions/Cases

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 …

U.S. Capitol Building

“Don’t Editorialize”

Jamison Koehler Criminal Procedure, Humor, Trial Advocacy

Many police officers have a tendency to editorialize on the witness stand. It is not that the driver reached for the glove compartment after being pulled over so that he could have his license and registration ready for the officer’s inspection. It is that the “suspect” was making “furtive movements” upon the officer’s approach. It is not that the police …