Criminal Procedure

Why Police Officers Love the “Plain View” Exception

October 27, 2011 Criminal Procedure

Police officers love the “plain view” exception to the Fourth Amendment requirement for a warrant. It is because this exception is so straightforward and understandable:  I didn’t need a warrant because I saw it with my own eyes.  I immediately recognized it as contraband.  So I grabbed it. All the other exceptions are much more [...]

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The Weather is Here, Wish You Were Beautiful: Love Letter to a D.C. Law Enforcement Officer

October 1, 2011 Criminal Procedure

I have a beef with a D.C. law enforcement officer.  I would be more specific, but I don’t want to embarrass my investigator.  He has to work with the guy. Dear Mr. Law Enforcement Officer: I understand you have been giving my investigator the old run-around.  Before becoming a criminal defense attorney, I worked for [...]

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Jack Lambert and My Investigator

September 27, 2011 Criminal Procedure

Wayne, my investigator, thinks he is being subtle. He insists on escorting me out of a bad neighborhood whenever we finish a crime scene investigation, and he doesn’t realize I can see him lingering down the street as I climb into my car. But this guy is bigger than his childhood hero, Jack Lambert of [...]

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On Prison Tapes: Eavesdropping on Your Client

September 16, 2011 Criminal Procedure

I am dealing with a “hide-the-ball”-type prosecutor in Virginia. I have gotten spoiled from working with D.C. prosecutors; they are usually pretty upfront about what they have against your client.  There are no ambushes or surprises.  Your client has better information in deciding whether to plea.  Everyone is better off for it. This is not [...]

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In Favor of a Virginia Jury Instruction on “Knowing and Intentional” Possession

September 14, 2011 Criminal Procedure

My client is a convicted felon. He knows that it is illegal for him to possess a firearm. He lends his ex-wife his car.  She returns it to him after a couple of days but accidentally leaves behind a handgun she had intended to take to the pawn ship. She calls my client and tells [...]

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On Compensating A Wrongfully Detained Defendant

August 27, 2011 Criminal Procedure

“My client had been held on no bond in the county jail for 25 months. Never once bitched about being in there or tried to rush me.” So says Chicago criminal defense lawyer Marcus Schantz on Twitter. A defendant is given credit for the time he spends in custody awaiting trial for the offense that [...]

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In Re Gault: “Constitutional Domestication” of the Juvenile Justice System

June 24, 2011 Criminal Procedure

There are only a small number of criminal cases that all lawyers, even those who don’t practice criminal law, seem to know.  Although Miranda v. Arizona is probably the most famous, there is also Gideon v. Wainwright (right to counsel), Wong Sun v. United States (suppression of illegally obtained evidence), Crawford v. Washington (right to [...]

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On Ashe v. Swenson: Double Jeopardy and Collateral Estoppel

June 18, 2011 Criminal Procedure

Many laypersons suffer from misconceptions about the protections offered by the Double Jeopardy Clause contained in the 5th Amendment to the Constitution. As Blonde Justice pointed out in one of her funnier posts, for example, double jeopardy does not cover the situation in which the defendant is forced to show up twice for court appearances on [...]

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On the Defendant’s Acceptance of Responsibility at Sentencing

April 15, 2011 Criminal Procedure

Earlier this week, I caught the tail-end of a DWI trial in which Michael Bruckheim was representing the defendant. Bruckheim had attended portions of my last DWI trial in D.C., and I decided to repay the favor. I wanted to see him cross examine the same police officer who had testified in my case. And, [...]

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Quarles v. Commonwealth: Coerced Confessions in Virginia

April 11, 2011 Criminal Procedure

In Quarles v. Commonwealth, a recently issued opinion by the Virginia Court of Appeals, the court considered a set of facts similar to the U.S. Supreme Court case of Rhode Island v. Innis.  However, finding a number of ways to distinguish this case from Innis, it concluded that the defendant’s confession should have been suppressed [...]

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