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The Kaplan Law Firm recently filed an appeal with the D.C. Court of Appeals seeking reversal of our client’s conviction for unlawful weapons possession. The case raises an interesting issue under the Constitution’s Confrontation Clause about the right of a criminal defendant to confront his (or her) accuser in court.

The clause of the Constitution’s Sixth Amendment that is at the heart of this appeal, and which is known as the Confrontation Clause, guarantees that, in a criminal case, the government normally cannot use a witnesses statement against a defendant unless the government brings that witness into court, has the witness provide testimony under oath and then allows the defendant’s attorney to cross-examine that witness. As the Supreme Court recognized in a landmark 2004 case, Crawford v. Washington (written by Justice Scalia), this right to confrontation is fundamental to the Bill of Rights’ objective of protecting us from abusive government authorities. Without this guarantee the government would be able to convict people based on anonymous statements not made under the penalty of perjury and not subject to cross-examination. As any experienced lawyer knows, the ability to cross-examine witnesses is critical to determining whether testimony is honest and accurate. The government, with its virtually unlimited resources, and its ability to punish those who defy it, can seemingly get almost anyone to say anything. It is under cross-examination, however that false stories tend to fall apart.

In any event, ever since the relatively recent Crawford decision, Confrontation Clause law has been rapidly evolving in the District of Columbia and around the country. Often this changing interpretation of the Confrontation Clause has favored Defendants, as the lower courts incorporate Crawford‘s reasoning into their own decisions.

In the case which we recently appealed the government used statements by an anonymous source who told the police that my client had an illegal gun as evidence to prove that my client had an illegal gun.  The identify of the police informant was not disclosed and, since he was not produced as a witness at the trial, there was no way to cross-examine him.  The details are set out in the brief  we filed, but to my mind the constitutional violation is clear.  We expect, however, that the government will argue that, whether or not there was a constitutional violation, my client’s trial attorney did not do enough to bring the issue to the trail court’s attention, meaning that, in the government’s view, we are not entitled to win on appeal, regardless of whether the prosecution acted unconstitutionally.