Evidence

Selective Assertion of the Fifth Amendment Privilege

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Suppose that an eyewitness testifies for the state on direct examination that he saw the defendant snatch an old woman’s purse and run off. The defense cross-examines the witness about whether he’d used drugs shortly before the crime took place, hoping to show that the witness’s perception was impaired. If the witness asserts his Fifth … Read more

I See Cocaine

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Can a lay witness testify that she could tell just by looking at a substance that it was, in fact, a controlled substance? (Let’s assume the witness has extensive dealings with drugs and therefore a basis of personal knowledge, and leave aside the credibility issues that may arise if she has been an enthusiastic consumer … Read more

Breathalyzer Source Code

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Once again, my interest in criminal law and my interest in technology have come together in a brewing legal controversy.  The issue is whether a DWI defendant who has submitted to a breath test for alcohol has a right to access the “source code” of the breath analysis machine.  The Minnesota Supreme Court, in State … Read more

Postconviction DNA Testing

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The United States Supreme Court recently heard oral argument in the Osborne case, an Alaska case that asks whether a criminal defendant who claims that he has been wrongfully convicted has a constitutional right to postconviction DNA testing of biological evidence.  The transcript of the oral argument is available here, and a news story that … Read more

Careful Questioning in Child Sexual Abuse Cases

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Further Update: The court has reissued an opinion in this case. On the issue discussed below, it is very similar — at a minimum — to the original opinion. Update: As of April 1, 2009, the Court of Appeals has withdrawn this opinion.  I’ll post again when the new opinion comes out. The Court of … Read more