Defining a “Testimonial Statement” under Crawford
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...
View ArticleOn “reliable hearsay” in Parker/Rollerson
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...
View ArticleOn interacting with the jury after trial
Trying to read the jury can be a humbling experience. Many years ago, during a DUI trial in D.C., I was encouraged by a young man in the front row who, listening intently, seemed to agree with...
View ArticleNegotiating the “proffer of facts” in a plea agreement
As part of a plea agreement, the government typically requires the defendant to agree to a "proffer of facts," a written statement of the evidence the government would have proven had the case gone to...
View ArticleCross-examination on a “confidential location”
“Confidential location.” An officer utters these two words in a drug case, and the court automatically shuts down all related cross-examination. The post Cross-examination on a “confidential location”...
View ArticleLimiting re-cross examination in Sanchez v. U.S.
Criminal defendants have a constitutional right to confront their accusers. In D.C., however, this right does not necessarily extend to recross examination. The post Limiting re-cross examination in...
View ArticleDefining a “Testimonial Statement” under Crawford
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...
View ArticleOn “reliable hearsay” in Parker/Rollerson
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...
View ArticleOn interacting with the jury after trial
Trying to read the jury can be a humbling experience. Many years ago, during a DUI trial in D.C., I was encouraged by a young man in the front row who, listening intently, seemed to agree with...
View ArticleNegotiating the “proffer of facts” in a plea agreement
As part of a plea agreement, the government typically requires the defendant to agree to a "proffer of facts," a written statement of the evidence the government would have proven had the case gone to...
View ArticleCross-examination on a “confidential location”
“Confidential location.” An officer utters these two words in a drug case, and the court automatically shuts down all related cross-examination. The post Cross-examination on a “confidential location”...
View ArticleLimiting recross examination in Sanchez v. U.S.
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...
View ArticleThe “forfeiture-by-wrongdoing” doctrine in Hairston
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...
View ArticleBias and corruption in Jones v. US
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. The post Bias and corruption in Jones v....
View ArticleBeating an attempted drug possession case
Now that DFS has lost its accreditation, the government is looking for creative ways to prosecute drug possession cases, including amending the charges to attempted possession. There are equally...
View ArticleOn character and grace
Donald Trump's problems go beyond a lack of manners or character. He is also a sociopath. He does not learn. He has no shame. He is driven only by immediate self-interest. The post On character and...
View ArticleOn the “missing evidence” jury instruction in Howard v. US
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.” The post On the...
View ArticleGetting the rules of evidence wrong in HBO’s “The Undoing”
It can't be much fun to watch a legal drama on TV with my wife and me. We understand the need to keep the story moving. But you need to get certain basics correct. The post Getting the rules of...
View ArticleHearsay through the eyes of our law student
When it comes to hearsay, there is only one phrase you need to keep in mind: Hearsay is an out-of-court assertion offered for the truth. If it doesn’t satisfy that definition, it is not hearsay. The...
View Article“Present Sense Impression” in Sims v. United States
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. The post “Present...
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