Criminal Procedure

On Trial Transcripts: Only the Stenographer Knows for Sure

January 25, 2012 Criminal Procedure

Reviewing the transcript from a hearing or trial you have done can sometimes be a humbling experience. What you may have remembered as a dramatic moment at trial can come across as flat on the printed page, and a good stenographer will throw in every “er,” “um” and “okay” to remind you that you may [...]

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On the Legal Representation of Juvenile Defendants: Ode to My Investigator

January 21, 2012 Criminal Procedure

I botched the investigation. I went to the store on Upper Wisconsin Avenue in which my client was alleged to have committed a robbery.  While there, I neglected to look for a critical piece of evidence:  whether or not there was a surveillance camera over the cash register.  As a result, my investigator Wayne Marshall [...]

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Cross-Examining a Prosecutor

January 20, 2012 Criminal Procedure

I have been called to testify in a criminal case. A couple of weeks ago I represented a woman seeking a civil protection order against a former boyfriend. With the boyfriend now facing criminal charges for contempt of court, certain admissions he made to me during the course of that representation have become relevant to [...]

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Confrontation Clause Be Damned: D.C. Continues to Use Surrogate Witnesses in DUI Cases

January 13, 2012 Criminal Procedure

Michael Bruckheim was scheduled to cross-examine Lucas Zarwell, the chief forensic toxicologist in D.C., and a group of DUI lawyers had gathered outside Room 116 yesterday afternoon shortly before 2:00 pm. Zarwell testified before city council last May that urine samples taken by police to test suspected drunk drivers are not reliable enough to accurately [...]

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On Recusals: Offending the Judge, Protecting the Client

January 9, 2012 Criminal Procedure

A couple of years ago, a Court of Common Pleas judge in Philadelphia banned me from her courtroom for life.  Both the stenographer and her law clerk looked at me with sympathy when the judge issued the edict. Maybe they thought I would be upset. In fact, running a list in this judge’s courtroom was [...]

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Toward a Better Rule on Informed Consent

January 3, 2012 Criminal Procedure

Police officers love the consent exception to the Fourth Amendment requirement for a warrant almost as much as they love plain view.  It is because the exception makes things so easy for them:  They can do almost anything they want so long as the suspect agrees to it. The suspect’s consent is usually given orally. [...]

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A Letter of Apology After a Guilty Verdict

December 16, 2011 Criminal Procedure

After finding my client guilty of simple assault, the judge orders my client to write a letter of apology to the complaining witness. I can understand an apology after a guilty plea.  After all, acknowledgment of remorse could be an important part of the rehabilitation process.  What I don’t understand is the need for an [...]

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Brilliant Trial Lawyer or Simple Ass?

December 9, 2011 Criminal Procedure

MR. KOEHLER:  Objection.  Relevance. THE COURT:  Mr. Koehler, you can sit down. MR. KOEHLER:  Your honor, this is absolutely ridiculous. MR. RIORDAN:  No, it’s not. THE WITNESS:  No, it’s not. MR. KOEHLER:  It is completely irrelevant. THE WITNESS:  What’s ridiculous is how [the petitioner] gets away with all this stuff. THE COURT:  I really can’t [...]

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Being Found Guilty After Pleading Guilty

December 8, 2011 Criminal Procedure

If you plead guilty, there is a 100% chance that you will be found guilty. Or something like that. I read that on the Internet a few weeks ago and, while I can’t remember who said it for attribution, I had the opportunity to use this clever little phrase just the other day. It is [...]

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Terry v. Ohio as a Seinfeld Episode

November 26, 2011 Criminal Procedure

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 [...]

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