Washington DC Criminal Defense Lawyer Blog

The other night while flipping through the channels, I came upon the new ABC show, Detroit 1-8-7, and decided to give it a shot. The show is not bad and being a Soprano's fan, I like the cast. One of the things that I always enjoy seeing is the crime scene investigations and forensic techniques shown on TV.

In this episode, the police took a painting made by the suspect and compared the blue paint used to spray-paint the word "fraud" on the murder victim's car. They told the suspect that they had their crime lab analyze the paint and matched the two samples. This was "proof" that the suspect committed the homicide because his paint was found on the car. He quickly confessed.

As a Washington, DC criminal defense lawyer, I thought it might be interesting to talk about how this would happen in real life. First, the sparsely-funded DC Metro Police Department would send the sample to their crime lab, where it could take weeks or even months to get a result. Contrary to what they show on TV, the police do not have gas chromatography mass-spectrometry equipment in every station. They may have it a central crime lab or even contract with a private commercial lab. The analysis that is eventually performed might tell them the brand of paint used, which would narrow it down to the massive quantity of cans sold by Krylon or Rust-Oleum for example. It is not very plausible that they could narrow it down a specific can or even the store the sold it.

What is true about the show is that the police absolutely could tell the suspect that they had done this analysis and use many deceptive techniques to get a murder confession. The police can and often do lie to suspects being interrogated, so don't believe anything they tell you when you're in the box or charged with a crime in Washington, DC.

In the first part of this post, I discussed the "same offense" and "dual sovereignty" exceptions to the Double Jeopardy clause of the Bill of Rights. The other issue that people seem to have difficulty with is the fact that a defendant can be acquitted of criminal charges and then sued in civil court for the same incident. A famous of example of this is the O.J. Simpson case. As you probably remember, Simpson was acquitted of the murders of Nichole Brown Simpson and Ron Goldman but later sued by the Goldman family for wrongful death under negligence. Many people seemed to think this was unfair and that Simpson was being subjected to Double Jeopardy.

The reason the Double Jeopardy did not apply is because there is a different standard of proof in criminal and civil cases. In a criminal case in Washington, DC, and the rest of the nation, a jury must find the defendant guilty beyond a reasonable doubt. While there is no mathematical formula to determine what a "reasonable doubt" is, it is generally considered to mean that jury knows to a moral certainty that the defendant is guilty of the offense. In a civil case, the standard of proof is "by a preponderance of the evidence." This is basically legal jargon that means more likely than not that the defendant is liable. This does not mean that 51 percent likelihood is enough, but it is far less than the reasonable doubt standard in a criminal case. On many levels this makes sense--if a defendant is charged with Assault and is acquitted at trial because there was some doubt, the alleged victim may still wish to pursue civil charges against the defendant, because there is a much lower standard of proof.

As a criminal defense lawyer in the District of Columbia, your main focus is the criminal charges pending against your client but, potential civil cases may influence the criminal case. A defendant may wish to take their chances at trial rather than pleading guilty to a lesser charge, because that guilty plea may be used against them in the civil trial.

As a criminal defense attorney in Washington, DC, I am often asked if what happens on TV and the movies happens in real life. Double Jeopardy deserves a closer look.

In case you aren't familiar with what I'm referring to, I think the movie aptly titled Double Jeopardy best sums up the common misconception. In the movie, Ashley Judd's character is convicted of murdering her husband in the state of Washington. She is in prison when she learns that she was set up by her still-living husband in order to gain access to a $2,000,000 insurance policy. She is informed by a "jailhouse attorney" that the Double Jeopardy clause of the Bill of Rights prevents her from being prosecuted twice for the same crime. She is told that she can murder him in public and there isn't anything the government can do about it. After being released on parole, she follows the trail to New Orleans where she confronts her husband.

While these facts make for an okay thriller, there are some major inaccuracies. The concept of Double Jeopardy comes from the Fifth Amendment to the US Constitution which states in part:

"[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb;"

The first problem with the movie scenario is that the killing of her husband in Washington, and the later killing of him in Louisiana would probably be considered separate offenses.
While it seems simple enough on its face, the US Supreme Court has added another issue when it interpreted the text as meaning that no person can be tried twice for the same offense by the same "sovereign." The Supreme Court further decided that a sovereign is a US State or the federal government. This means that one state can prosecute a defendant, and then another state, or the federal government, can prosecute the defendant again for the same crime, so long as they have jurisdiction. The Timothy McVeigh case is a good example of this separate sovereign requirement. McVeigh was charged by the US Attorney with the Oklahoma City bombing and the associated murders. They got a guilty verdict but did not get the death penalty. The state of Oklahoma later tried and convicted McVeigh of the same crime, and he received the death penalty. The state of Oklahoma and the US Government are separate sovereigns, so the Double Jeopardy Clause does not apply. Going back to the movie example, the state of Louisiana is a separate state from Washington, so the Double Jeopardy clause does not apply.

In the next part of this post, I will discuss the second question that arises in the context of Double Jeopardy, which involves different standards of proof in civil and criminal trials.

It seems like every scripted show on TV these days is either a police or courtroom drama. The audience is captivated by these types of shows. The only problem is that people start to base their knowledge of the legal system on what they see on TV.

One of the biggest misconceptions is the so-called "entrapment defense." TV has taught us to believe that an undercover officer has to tell the suspect he is a cop if asked. This could not be farther from the truth. If you were a cop and had to tell armed drug dealers you were a cop if asked, how likely would you be to go undercover? The truth is that the police can lie to you, and they do it all the time.

I once prosecuted a case involving three defendants charged with prostitution. They defendants were high on crack when approached by two undercover detectives. One of the defendants thought she recognized the detectives and said "Hey, aren't you those cops that busted me last month?" The detective's actual response which I was required to read in court, was "nope, we're just a couple of horny guys." This is perfectly legal and not entrapment.

I realize that everything I just said flies in the face of what TV has taught us, so let me explain the truth about entrapment. Entrapment occurs when a person who had no intention of committing a crime is convinced to commit a crime by the police and then arrested. Here is an example of entrapment of a man walking down the street by an undercover cop:

Undercover Cop: Hey, you want to buy this Rolex I just stole?

You: No.

Undercover Cop: Come on, I can give it to you for a real good price.

You: No thanks. I'm not interested.

Undercover Cop: Look, this is a $7,000 watch and you can have it for $50.

You: OK, yeah, for $50 I'll take it.

Undercover Cop: You're under arrest for receiving stolen property.

I know you must be thinking that what you just read sounds ridiculous and you're right. That's why entrapment hardly ever happens in real life. In the case of the prostitutes, they were already intending to commit a crime so it wasn't entrapment. Here, the police convinced an innocent man to commit a crime and then arrested him, so it was entrapment. My advice is don't believe everything you see on TV.