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 the criminal proceedings.

It feels strange to be working on the same team as a prosecutor I have opposed many times. Yes, yes, I tell her when she emails me. Any of those dates would work fine. Fortunately, we have a good relationship and I promise to be a cooperative witness who simply answers the questions that are put to me. Because I know from personal experience that people who are familiar with the system can sometimes make the worst witnesses.

A couple of years ago in Philadelphia, I represented a client in a case in which the complaining witness was a supervisor from the district attorney’s office.  Speaking to the supervisor before trial, I took perverse pleasure in hearing her complain about her mistreatment at the hands of police officers and the junior prosecutor who was assigned to the case. This system we have, she said, really stinks. I can’t believe they made me wait that long at the police station. I can’t believe that no one contacted me to discuss this case until the morning of trial.

When she finally made it to the witness stand, she didn’t like the questions that were put to her on direct because, after all, she knew much better.  And, despite her many years of experience as a trial lawyer, she seemed personally affronted by my cross-examination. She may have been expecting professional courtesy.  What she got instead was an education in humility.

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 complicated, and the law surrounding them is always changing.  How can you be sure an arrest is “lawful” with respect to the search-incident-to-arrest exception? What is “reasonable suspicion” for a stop-and-frisk?  How do you define “hot pursuit”?  That type of thing.

Not so with the old “plain view” standby.  Police officers don’t need a law degree to figure it out.

As a result, officers will often opt for this exception even if they could have stuck to the truth and still prevailed under another exception. But it is a slippery slope. Once they have bent the truth to justify the legality of the stop through the “plain view” exception, it becomes easier to tell an even bigger lie the next time.

And they can often get themselves into all sorts of trouble with the lie.  They develop xray vision and see things that no mortal could possibly see. They tell contorted stories that no reasonable person would ever believe.  And judges who accept these tall stories for the sake of convenience – the search must have been legally justified through one of the exceptions so why not this one? — aren’t doing anybody a favor.  Neither is the prosecutor who decides to look the other way.

I had a case the other day in which the officer went to great lengths to explain how he could have seen contraband sticking out of a client’s pocket when the physical evidence – and the officer’s own previous testimony — screamed foul.  What the officer did not seem to realize is that he could have justified recovery of the contraband through the “search-incident-to-arrest” exception.

Falsus in unius, falsus in omnibus.  Or, as my grandmother always liked to say, “too clever by half.”  Except when the judge accepts the lie. In that case, it is simply “clever.”

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 the federal government.  So I know a thing or two about bureaucracy.  I know how people use bureaucratic leverage to increase their sense of self-importance.  I know about bureaucratic foot-dragging and red-tape to mask incompetence. 

Allow me to say this:  No matter how many hoops you make us jump through, we will get what we need from you.  We already have one court order.  If we need to, we will go back and get another.   Trust me on this:  The judge will not be happy.

If you delay too long, the judge will grant our motion to continue the trial.  Yes, that means my client will have to sit in custody a while longer.  This may well be what you have in mind.  You probably also think you are doing your part to make sure that another guilty person does not go free.  But your delay also means more work for the judge, the court staff, and the prosecutor.  You know all those government witnesses who have set aside time to come to court?  They too will have to come back on another date. The prosecutor is going to be upset about that. 

Finally, I will let you in on a little secret.  Unlike my retained cases in which I charge a flat fee, this is a court-appointed case.  This means that the government is paying both my investigator and me for the time we put in on this case.  It is an hourly fee. The harder you make us work, the more we get paid. Our pay and your salary both come from the same pot:  public funds. Think about that the next time you complain about cuts to your department’s funding.

Love and kisses. Your pal, Jamison Koehler

I am sitting in JM-15 at D.C. Superior Court watching a Georgetown University law student cross-examine a police officer on a drug case.

The officer is doing the old “dumb officer” routine; that is, he can’t seem to understand any of the questions, even though it is perfectly clear to everyone else in the courtroom what the student is asking.  The officer seeks clarification each time. And he pauses before answering. This is to remind the prosecutor to object.

The officer – bully that he is — is trying to intimidate the student. And the tactic is working. Forced to repeat, justify and explain each question, the student has been taken out of the rhythm of his cross.

But it is not always this way.

I did a similar clinical in law school in which, working under the supervision of a senior public defender in Philadelphia, we represented clients at preliminary hearings and misdemeanor trials.

I still remember the look of condescension on a police officer’s face as he took the stand and found that he would be cross-examined by a Temple University law student. The student stood under five-feet tall and looked like she was 16 years old.

And then she began her cross.

The woman had been a national trial team champion in high school and college. She would go on to become the superstar of my class at the Philadelphia public defender’s office. Watching her take the officer apart question-by-question, bit-by-bit, I couldn’t help thinking of the time I came across our cat torturing a chipmunk. The chipmunk, surprisingly, put up a pretty good fight. But there was no question who would win in the end.

Meanwhile, back in JM-15, I am cross-examining my own version of a bully, a sergeant who arrested my client for stealing a car, crashing it into four parked cars, and then fleeing the scene.  It is a probable cause hearing to determine if there is enough evidence to hold my client pending trial.

This guy is the opposite of the reluctant, taciturn witness the Georgetown student faced.  He wants to bring in every bad fact possible to poison the well against my client, and I, thinking ahead to trial, am only too happy to oblige.  We sit across from each other, he on the witness stand and I from counsel’s table, each of us with a self-satisfied smile, each of us convinced that we have the other guy right where we want him.

The government established probable cause a long time ago. I decide to let him talk.

A proposal to install indoor surveillance cameras at Fairfax County schools in Virginia has created quite a controversy.  With many parents still upset over harsh disciplinary practices in the schools that have led to a couple of suicides, critics of the proposal have expressed concern over any further encroachment on the civil liberties of students.  They see the proposal as further evidence of our movement toward an Orwellian world in which our every movement is tracked and scrutinized.  According to the Washington Post, the proposal was motivated at least in part by a recent food fight at Robert E. Lee High School in which close to 100 students participated:  “Nearly every guilty student escaped unpunished, protected by chaos that made it impossible for school officials to figure out who did what.”

Looking at this from a practical standpoint, I myself have long been a fan of surveillance cameras, at least in the context of a criminal case.  Because more often than not, the existence of a videotape will help the defense.

Although defendants often claim that the police have no evidence, what they really mean is that police do not have any physical evidence. These people may not fully appreciate that the government does not need to have any tangible evidence in order to secure a conviction; the simple say-so of a complaining witness or police officer taking the stand can have the same legal effect.  Because oral testimony too is evidence.

This is where surveillance cameras come in.

Government witnesses often have remarkable memories for even the smallest of details when it comes time to testify.  And these memories tend to coincide nicely with the prosecution’s theory of the case. In the case of a DWI, for example, we hear how the defendant was drooling on himself and staggering all over the street. It is no wonder that many jurisdictions still do not use cameras mounted on police car dashboards even though these technologies are both widely available and inexpensive.

If the voluntariness of a confession is at issue, we will hear how calm and relaxed the atmosphere was at the time the defendant was informed of his rights and decided to come clean.  And, of course, there is always a clear-cut aggressor in assault cases.

But life itself is never that black-and-white.  The details are more nuanced.  And videotapes tend to reflect that reality far better than the selective recollections of a government witness. And if in the end you don’t like what you see on the videotape, at least you will be better informed going into plea negotiations.

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 him the firearm is in the car. Not wanting to call the police and not wanting to drive around with a firearm in his car, my client takes the firearm into his house for safekeeping until he can return it to her.  It is the next morning that the police execute a search warrant at his home in connection with other charges and confiscate the weapon.

The government will have no difficulty proving my client’s previous convictions.  The government also has my client’s testimony under oath at an earlier trial that he found the firearm and took it into his home.  As a result, the only issue at trial is going to be whether or not this possession was “knowing and intentional.”

In Pennsylvania, if I recall correctly, you don’t have to go far to find a definition of “knowing and intentional.”  Both terms are defined at the very beginning of the Pennsylvania Crimes Code.  Not so in Virginia.  Although this language is included in a number of statutes criminalizing certain behavior, nowhere in the statute are the terms “knowingly” and “intentionally” actually defined.

There is also no jury instruction.  The Committee on the Model Jury Instructions in Virginia may well have concluded, as did its counterpart in D.C., that defining many traditional legal terms, such as “general intent,” “specific intent” and “malice” could be more confusing to juries than helpful.  But, as I later argue to the judge at trial, a jury will want to know the definition of key terms of the offense with which the defendant has been charged.

I make a conscious decision not to force the issue before trial. The prosecutor has hundreds of other open cases he is thinking about.  I, on the other hand, have had six months to focus on this issue.  From the prosecutor’s response to my pre-trial motion to dismiss, I have also noticed that he seems to be kind of light on the law; I don’t want to give him time to prepare.  Finally, there is no guarantee in Prince William County that the judge who sits for the pre-trial motions will also preside at trial. I could succeed in bringing one judge around to my way of thinking only to have another judge sit at trial, all the while giving the prosecutor plenty of time to arm himself.

Instead, I plan to educate the judge on my legal theory during my “motion to strike” (Virginia’s version of a motion for judgment of acquittal) and then address the issue head on during our arguments on jury instructions.  But I am worried about the prosecutor objecting during my opening statement.  I craft my opening statement carefully so as to emphasize the plain language used in the statute without any hint of interpretation.

As it turns out, I am the one who objects during opening statements. Although it has seemed blatantly obvious to me what the issues will be at trial, the prosecutor has apparently not been able to anticipate our defense by the time trial begins. Perhaps distracted by some of the pre-trial motions I did make, he begins to tell the jury in his opening statement what the defendant’s argument is going to be.  I object.  The jury is excused and we debate.

The prosecutor is angry.  Why would I go to all the trouble of securing the admissibility of certain evidence during pre-trial motions if I never had any intention of introducing that evidence?  Why would I waste the court’s time like that?  I tell the judge that it is the defendant’s prerogative to change his mind.

The judge sustains my objection and brings the jury back in.  He tells them that the government has made a mistake in trying to anticipate evidence the defendant is not planning to introduce.  They are to disregard this statement.

The prosecutor proceeds with his case.  He calls eight witnesses to testify to things I have already conceded in my opening statement.  Detectives, police officers, and crime scene technicians all testify to the recovery of the firearm in a bureau of my client’s house along with his driver’s license, Visa card, and bank checks.  I ask only two questions on cross.  Otherwise I rise in my seat and say “no questions” every time the prosecutor concludes his direct.  Later my client gets on the stand and testifies:  yes, that was my home, my bedroom, my bureau, my driver’s license, my Visa card, and those were my checks.  And, yes, I put that firearm in the bureau.

When the jury is excused for lunch and we get to the jury instructions, the prosecutor argues that the use of “intentionally” in the statute requires only that the government prove “general intent”; that is, that the defendant acted “voluntarily and on purpose, not by mistake or accident.”  This means that, in order to meet its burden with respect to this element of the offense, the government will only need to prove that the defendant intended to pick up the firearm.

In fairness, the government’s interpretation is supported by a jury instruction on “actual and constructive” possession of a firearm. This instruction defines “knowingly and intentionally” as being “aware of the presence and of the firearm and [having] actual or physical possession or constructive possession.”  It is, as far as I can tell, the only definition of “knowing and intentional” anywhere in the jury instructions.  At the same time, this jury instruction – in addition to being circular and confusing – is completely unsupported by the case law it cites and, for whatever reason, the prosecutor does not include it in his list of proposed instructions.

I argue that, because the legislature does not modify “possession” in other sections of the firearms statute with these terms, thereby requiring only physical possession with respect to those provisions, it must have been thinking along the lines of “specific intent” when it used “knowingly and intentionally” in connection with possession of a firearm by a felon.  This means that the defendant must have actually intended the required result; that he must have wanted to possess the firearm.

Although there is no jury instruction on this, my argument is supported by case law.  In Young v. Commonwealth, 659 S.E. 2d 308, 310 (2008), for example, the Virginia Supreme Court held that actual or constructive possession was not sufficient to prove knowing and intentional possession in the context of controlled substances. The Court must therefore have had something more in mind than simple physical possession.  This argument is also supported by the statute’s legislative history, the Model Penal Code and Wayne LaFave’s authoritative treatise on criminal law.

The judge is not persuaded by the jury instruction I have cobbled together based on these authorities, even after taking a moment to read the case law.  The simple fact, he tells me, is that there is no instruction on the definition of the terms.  At the same time, in the interests of balance, he does agree to strike an instruction proposed by the government. This is the standard instruction that informs the jury it may infer that a person intends the natural consequences of his/her actions.

After listening to our arguments, the judge eventually decides not to deliver any instructions to the jury at all on the meaning of these terms.  But he allows us to argue our respective interpretations during closing.

Not surprisingly, when the closing arguments are completed and jurors retire to the jury room to deliberate, they come back after 20 minutes with two questions:  What is the definition of “intent”?  And what is the definition of “possession”?  After some more argument, the judge again refuses to instruct them one way or the other; they are to use common sense and their own experience in figuring this out for themselves.

I am convinced that it was their confusion over this issue – whether or not to believe the prosecutor’s version or my version – that led to the completely illogical compromise verdict they eventually arrived at.  Without any guidance from the court and not knowing what to do, they decided to split the difference:  The defendant was guilty but not that guilty.  A formal jury instruction on a key terms used in the statute could have avoided this confusion altogether.

My client can always appeal.  Virginia law is pretty clear on the importance of jury instructions. We had also litigated what I thought was a very strong motion to dismiss earlier in the process. Specifically, we had argued that the staggering of successive prosecutions against my client in order to gain tactical advantage had violated his constitutional protection against double jeopardy and his right to due process.

At the same time, acquitted of the more serious charge and now sitting at home with his family, it is unclear whether my client will choose to exercise this option. In fact, I suspect the judge may have had all of this in mind when he reduced the jury’s sentence to time-served. Pacifying a defendant through a more lenient sentence can sometimes prevent your decisions from coming back later on appeal.

The right to cross-examine witnesses is one of the defendant’s most important trial rights.  And, among the areas for cross-examination, what could be more important than bias?  An inability to accurately perceive events could result in an honest mistake.  Bias suggests that the witness might be deliberately coloring the testimony.

In Blades v. United States, __ S.E.2d __ (2011), the D.C. Court of Appeals found that the trial court had improperly prevented the defendant from cross-examining the government’s only witness with respect to bias. It therefore reversed the decision and remanded the case for a new trial.

The government’s only witness at trial, James Bell, testified that he had personally witnessed the defendant stab another man.  Responding to the government’s questions, Bell also stated that he was “on very good terms” with the defendant, that the two of them had never tangled on anything, that he had no reason to fabricate his testimony against the defendant, and that the defendant was “like family” to him.

On cross-examination, defense counsel began to question the government witness about his stepson, a man who had been shot a few years ago in a separate event, when the government objected on the grounds of relevance.  What did a stepson’s shooting years many years ago have to do with the stabbing of the deceased in this case?

Defense counsel proffered that, although Bell believed the defendant had witnessed the assault, the defendant had refused to help with the identification and prosecution of the shooter. Defense counsel sought to determine the extent to which Bell might hold this refusal again the defendant, thereby potentially contaminating his testimony against the defendant.

The trial ruled against the defendant.  Specifically, it held that the defendant’s theory of bias was “far-fetched” and “too speculative.”  It thus precluded defense counsel from questioning Bell about any potential hostile feelings he may have harbored against the defendant in connection with the  stepson’s shooting.

In rejecting the trial court’s decision on the testimony, and thus reversing the decision, the D.C. Court of Appeals suggested that defense counsel might have done a better job of laying the foundation for this line of questioning:  “It is true that before pursuing a line of questioning suggesting that a witness is biased, a defendant must lay a foundation sufficient to permit the trial judge to evaluate whether the proposed question is probative of bias.  In order to lay a proper foundation for bias cross-examination, defense counsel must proffer, at the very least, a well-reasoned suspicion rather than an improbable flight of fancy to support the proposed cross-examination.”  (Citation and internal quotation marks omitted.)

At the same time, the Court held that the proffer need not be “exhaustive” or “particularly compelling” and that the standard is a fairly lenient one:  “Because of the central role that bias cross-examination plays in a criminal trial, the court must accord such cross-examination wide latitude and must not unduly restrict it.”  Cross-examination is “necessarily exploratory”:  “[T]he trial court must give counsel some leeway to probe for information that she cannot prove before commencing cross-examination.”  (Citations and internal quotation marks omitted.)

In the instant matter, the D.C. Court of Appeals concluded that defense counsel’s proffer was a “well reasoned suspicion,” not ‘improbable fight of fancy.”  The cross-examination as to Bell’s bias should thus have been permitted.

Yet another benefit to private practice – as opposed to being a public defender – is that you have more time for investigations.

Wayne, my investigator, actually handles most of my on-scene investigations.  As a former cop, he knows what he is doing. He has a great way with clients and witnesses. He also knows every Shell station, Seven-Eleven, and drug corner in this city.  At the same time, based on the recognition that there is no substitute for seeing something for yourself, I usually tag along.

I have yet to win a case based solely on something I have discovered during a site visit. In other words, I have never had that Perry Mason or Cousin Vinnie moment. Nevertheless, I have never regretted a single moment spent visiting a crime scene. Richard Rhodes once said that you can’t write about aerial combat until you have sat in the cockpit of a jet fighter, and I feel the same way about conducting an investigation.

Police reports are notoriously light on the details, and officers on the stand are masterful at conforming their descriptions of the physical layout to whatever argument the government happens to be making. There is also the danger that you will substitute your own mental conception for reality.  For example, I once represented someone accused of breaking into a church.  The urban church I found — with its locked steel doors and barbed wire on the perimeter — was very different from the welcoming New England church I had envisioned in my mind.

You can pull up a picture on Google Earth of a housing complex. But you will probably miss the video camera on the lamppost, the No Trespassing signs posted over every entryway, the middle school across the street, and the basketball courts on the corner. Wayne also picks up things I would miss. During an investigation the other night, for example, he noticed some gang signals being exchanged that went over my head.

Finally, I can always call Wayne to the stand should a government witness not cooperate with my recollection of the physical layout.  There is, after all, nothing more satisfying than the look of surprise in the police officer’s eyes when it begins to dawn on him during cross-examination that you know a bit more about the actual physical surroundings than you have previously let on.  Yes sir, he has to concede, there are in fact signs on the storefront window that could have impeded my view of the goings-on inside.

Even if the investigation proves fruitless, you have the reassurance of knowing you have not missed anything.  A couple of nights ago, Wayne and I sat in his car after a series of investigations and simply looked at each other and nodded.  This particular case was probably going to be a plea.

Investigations are not without their hazards, particularly in the bad parts of town. I was once physically ejected from a diner in Philadelphia, and my car was broken into a couple of nights ago although I had been gone for no more than five minutes.

Wayne tells me I need to get myself a “hooptie.”  I am so uncool I didn’t even know what that was, and had to look up the spelling on the Internet.  Wayne himself uses a beat-up old Nissan for investigations, saving his SUV for other occasions, and he dresses down in an old New York Giants jersey.  As a result, he doesn’t stick out nearly as much as I do.

I am open to the idea of getting myself a hooptie.  Or I can always borrow my wife’s car, which, I am sure, is an embarrassment to our neighbors. But whatever I decide, I think I’ll pass on the Giants jersey.

The firmly established “collective knowledge” doctrine in D.C. provides that, in determining whether the officers possessed sufficient knowledge to establish reasonable suspicion or probable cause for a search or seizure, it is not what any individual officer knows but what the officers know collectively, whether or not the information is actually communicated from one officer to another. At the same time, possessing the requisite information from police officers viewed collectively does not relieve the government of its burden to introduce this information either at trial or during a pre-trial motion to suppress.  This is the holding from Parsons v. United States, ___ A.2d ___ (D.C. 2011), a D.C. Court of Appeals decision that was issued on Thursday.

On May 2008, a paid informant to the U.S. Park Police called his “main handler,” Detective Freeman, to report a “narcotics violation” in the 300 block of Livingston Terrace, Southeast. However, because Detective Freeman was off duty at the time, the detective instructed the informant to provide the information to one of the detective’s colleagues, Wayne Humberson.

Acting on the informant’s tip, Detective Humberson went to the location in question and, finding Parson there matching the description, stopped and searched him. The Detective found a pink zip-lock bag containing cocaine in Parson’s left sock. Parsons was then arrested and charged with unlawful possession of a controlled substance in violation of D.C. Code § 48-904.01(d).

Parson’s lawyer did not file a pre-trial motion to challenge the legality of either the stop or the search.  However, when it became apparent during trial that Detective Humberson had never worked with the informant before and therefore had no way to gauge his reliability, defense counsel immediately made an oral motion to suppress the search.  He argued that, because Humberson did not personally know the informant to be reliable, “the reason for stopping Mr. Parson[s] was not justified.”

The judge denied the motion, holding that on the basis of the collective knowledge doctrine, Detective Humberson “[did]n’t have to know that [the source was] reliable . . . He [did]n’t have to know it personally . . . What one knows, they all know.”

The problem was with the government’s case, however, and the reason that Parson’s convicted was overturned and his case remanded for trial was that, even though one officer possessed the necessary information on the informant’s reliability and this information could be imputed to the officer who effect the search, the government is still not relieved of its duty to produce this evidence for the court.  And this the government failed to do. The court held:

The problem in the present case is that, even applying the collective knowledge doctrine, there was no testimony from which the trial court could have judged the informant’s credibility. Detective Humberson was not the confidential informant’s handler; in fact he had never dealt with the informant prior to the day of Parsons’s arrest. Detective Freeman, who was the handler, presumably could have testified at Parsons’s trial as to the informant’s track record and the existence of other virtuous qualities, but he did not. It appears from the record that the trial court “simply rel[ied] on [Detective Humberson’s] conclusory assertions in deciding whether [his search of Parsons] was justified” and did not, as required by our case law, “evaluate the facts underlying those assertions.”

Over at Liberty & Justice for Y’All, B.W. Barnett describes one of his pet peeves:  lawyers who pepper their speech with the phrase “let the record reflect” or “for the record.”

“Of course the record will reflect!” he writes.  “If you’re saying something out loud in court and there is a court reporter present taking the transcripts, the record will reflect.  There is no need for the superfluous phrase.  But alas, through movies and TV dramas, the phrase has become a seemingly permanent part of our litigation lexicon.”

I have to admit that I have been guilty of using the phrase a few times myself. When I do use it incorrectly, it is usually when the court has just ruled against me or when I sense an adverse ruling in the offing.  (I know, I know:  childish. I should probably stamp my feet at the same time.)

It can be appropriate to use the phrase when something is going on in the courtroom that will not be reflected in the written record. For example:  Please let the record show that the witness has put his hands under his armpits and is now flapping his elbows like a chicken.

But Barnett disagrees with me on even that.  He says you can still describe the gestures without actually using the phrase.  The example he gives:

Lawyer:  Mr. Witness, can you please demonstrate what the defendant did when he saw you across the room.

Witness:  Yes, he went like this.

Lawyer:  The witness raised his hand and pointed his index finger outward and his thumb up as in the shape of a gun.

Writes Barnett:  “I completely understand our instinct to do it.  It takes some practice to overcome, and if you are successful in overcoming it, you are forever annoyed by those who continue using it.”

Now he’s done spoiled it for me.  What’s the fun of being a lawyer if you can’t get away with a few affectations every once in a while?