Underdog Blog – Fairfax Criminal Defense Lawyer | Virginia DUI Attorney
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The federal sentencing guidelines may not bind judges
Today, the Fourth Circuit revisited Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551 U.S. 338 (2007), in ordering a resentencing where a sentencing judge "stated that while it did not agree with the Guidelines range, it was ‘obligated’ to give...
Putting a shelf life on Miranda rights
How many Supreme Court justices have been interrogated by police? Probably none. How many have asserted their Miranda rights with the police, only to have the police repeatedly come back to them seeking a reversal of the waiver? Probably fewer. How many of them agree...
Summary contempt proceedings are only available where the judge witnesses the contempt firsthand
Many make much fanfare about the United States criminal justice system’s right for criminal defendants to remain silent, to have a trial, to be presumed innocent unless and until found guilty beyond a reasonable doubt, and the right to counsel. However, the courts where I...
Use Brady as a shield and sword
Last August, I wrote about Brady v. Maryland, 373 U.S. 83 (1963). In its key holding, Brady proclaims: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to...
Keeping Drug Field Tests Out of Evidence
Virginia has a statute allowing marijuana field testing testimony into evidence: “In any trial for a violation of § 18.2-250.1, any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department...
James Shellow on cross-examining drug analysts
On a recent criminal defense lawyers’ listserv thread, a colleague recommended James Shellow’s Cross Examination of the Analyst in Drug Prosecutions (Lexis-Nexis). My colleague who posted on Shellow’s above-listed treatise points out that he was a chemist before going to law school. Interestingly, Justice Scalia references Shellow, as...
“Swear words” are not sufficient by themselves to get a conviction
Recently, Virginia’s Court of Appeals confirmed that so-called "swear words" are insufficient by themselves to convict for obscene or profane language. In Lofgren v. Virginia, ___ Va. App. ___ (Nov. 3, 2009), the Court reversed Lofgren’s conviction for a phone call in which he let loose...
Jan 2010 Recent Virginia Supreme Court Opinions
Following are some particularly important recent Virginia Supreme Court opinions: Logan v. Virginia, ___ Va. ___ (Jan. 15, 2010): The “exclusionary rule is not applicable in probation revocation proceedings absent a showing of bad faith on the part of the police.” Jones v. Virginia, ___...
Tracking Virginia criminal law legislative proposals
Thanks to a fellow listserv member for posting the following links for tracking criminal law legislation being proposed during the current Virgnia legislative session: Criminal law – substantive:https://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+018 Criminal law -procedure:https://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+019 Juvenile:https://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+099 Circuit Court – procedure:https://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+017 District Courts – procedure:https://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+016
“You are talking like a lawyer”
Photo from website of U.S. District Court (W.D. Mi.). The phone and emails are constantly ringing from clients, witnesses, courts, opposing lawyers, potential clients, and the list goes on. No sooner does one court date finish than the next court date begins. Snail mail is relentless....