Underdog Blog – Fairfax Criminal Defense Lawyer | Virginia DUI Attorney
Fairfax Criminal Lawyer / Virginia DUI Attorney- Highly-Rated
Pursuing Your Best Defense Since 1991
Scrutinize confidential informants with a fine-toothed comb
Read enough search warrant applications, and "CI" (confidential informant) will rear its head again and again. Praised be Virginia’s Court of Appeals (albeit by only 2-1) for reversing a conviction that resulted from a so-called reliable confidential informant’s tip that the defendant was about to...
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...
A criminal defendant’s testimony at a suppression hearing may not be used against him at trial
"[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Simmons v. United States, 390 U.S. 377 (1968). Consequently, it...
Use Brady as a shield and sword
Bill of Rights. (From the public domain.) 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...
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, ___...