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Articles by Matthew Clarke

Kentucky Supreme Court Clarifies When Lesser-Included Offense Instruction Must Be Provided, Reverses Convictions Based on Trial Court’s Failure to Properly Instruct Jury

by Matt Clarke

The Supreme Court of Kentucky reversed convictions for first-degree wanton endangerment (“FDWE”) and first-degree persistent felony offender, holding that the trial court erred by failing to give a second-degree wanton endangerment (“SDWE”) jury instruction when the admitted evidence supported such an instruction.

Dwight Taylor met A.P. at ...

California Supreme Court Reinstates Petition for Resentencing Under SB 1437 Because Trial Court Misapprehended Le-gal Requirements for Proving Aiding and Abetting Implied Malice Murder

by Matt Clarke

The Supreme Court of California reinstated a prisoner’s petition for resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Session) (“SB 1437”) after finding that the trial court had misapprehended the legal requirements for proving aiding and abetting implied malice murder.

When he was 15 years old, ...

New Jersey Supreme Court Announces Presumption in Favor of In-Person Interpreter for Criminal Trials and Issues Guidelines for Use of Video Remote Interpreting

by Matt Clarke

In a case of first impression, the Supreme Court of New Jersey held that there is a presumption in favor of in-person interpreting services, rather than video remote interpreting (“VRI”), for criminal trials and promulgated guidelines for determining whether a criminal defendant should be provided in-person ...

U.K. Study of Consistency Among Pairs of Child Witnesses Shows Surprising Results

by Matt Clarke

A recent report on a study of the consistency among pairs of child witnesses published in the U.K. journal Legal and Criminological Psychology showed the surprising result that neither the age of the paired children nor the consistency of the details the pairs of child witnesses report ...

Texas Court of Criminal Appeals Holds Granting Motion for New Trial Because ‘Verdict Is Contrary to Law and Evidence,’ Without Further Explanation, Bars Retrial

by Matt Clarke

In a case of first impression, the Court of Criminal Appeals of Texas held that granting a motion for new trial based solely on the ground that the “verdict is contrary to the law and evidence” is a finding of legal insufficiency of the evidence so that a ...

Colorado Supreme Court Clarifies There Is No Per Se Rule Excluding Self-Serving Hearsay

by Matt Clarke

The Supreme Court of Colorado ­clarified that there is no per se rule excluding self-serving hearsay by a criminal defendant, holding that “like any other hearsay statement, a defendant’s self-serving hearsay statement may be admissible if it satisfies a hearsay-rule exception in the Colorado Rules of Evidence [(“CRE”)].”

College student L.S. went out drinking with friends. Jacob Vanderpauye, with whom she had taken a class, joined the group. The two flirted with one another and then left together to join his friends at another bar. “There, she told him she was drunk and very tired. Vanderpauye told her she could stay at his apartment if she wished, and she agreed to spend the night there.”

As they “walked to his apartment, she told him that she was not going to have sex with him.” He “appeared offended by this statement and told her that he didn’t want her to think of him that way. L.S. apologized.”

They sat on the bed, watched TV, and “engaged in affectionate kissing for a while, but she eventually told him she was drunk and tired and needed to get some sleep. And he responded that she should get some sleep.”

“L.S. ...

‘Silos’ Can Keep Police Departments From Knowledge of Extent of Police Abuse and Consequences of That Abuse

by Matt Clarke

Around two decades ago, UCLA law professor Joanna Stewart was a civil rights attorney working on a large class-action lawsuit against the New York City Department of Corrections. While interviewing guards, she was surprised to learn that they did not know how many times they had been sued. Later, she discovered that this situation was common among police and correctional officers. The reason is that lawyers representing the officers intentionally withhold information from the departments, believing knowledge of previous misconduct will increase liability.

Frequently, “the information from the lawsuits goes back and forth from the city attorney’s offices, but that information doesn’t make its way over to the police department, officers and officials.” Thus, information about lawsuits is kept closely within the city attorney’s office in an information “silo.”

In her new book, “Shielded: How the Police Became Untouchable,” she explains how silos and legal protections such as qualified immunity and no-knock warrants have shielded officers from the consequences of their abusive actions. She argues that true reform will require local police departments to collect and analyze information from the lawsuits in which they are defendants and pay the costs of any settlements out of their own ...

Massachusetts Supreme Judicial Court Affirms Granting of New Trial in Murder Case Based on IAC Where Counsel Failed to Investigate Exculpatory Evidence Contained in a Proffer and Provided to Counsel Prior to Trial

by Matt Clarke

The Supreme Judicial Court of Massachusetts affirmed the granting of a motion for new trial in a murder case based on trial counsel’s failure to investigate exculpatory information provided by the prosecutor.

A jury convicted Omay Tavares of first-degree murder. The prosecution’s evidence supported its theory that a six-foot tall light-skinned man wearing a hoodie and skullcap and calling himself “O” had a loud argument with the victim at his apartment. “O” then pulled a 9mm pistol from his waistband and fired three shots into the victim. However, the two prosecution witnesses who saw the shooter at the apartment failed to identify Tavares when shown a photo array.

Cellphone records indicated that Tavares was in the vicinity of the apartment when the shooting occurred and was the last person to call the victim. Tavares explained that and his fingerprint being on the apartment’s exterior doorknob by telling police he had previously been to the apartment and argued with the victim over the price he paid for some marijuana. A search of Tavares’s apartment turned up marijuana, $500 in cash, and some clothing similar to that worn by the shooter, but no murder weapon was recovered.

Two weeks ...

Ohio Supreme Court Holds Termination of Community Control Is Final Discharge for Purposes of Sealing Records and Terminates Unsatisfied Condition to Pay Child-Support Arrearages

by Matthew Thomas Clarke

The Supreme Court of Ohio held termination of nonresidential community control (“NCC”) is a “final discharge” within the meaning of R.C. 2953.32, permitting eligibility to apply to seal the record of a conviction three years after a felon receives final discharge even if some of the ...

Missouri Supreme Court: Use of Out-of-Court Statement Admitted at Trial Exceeded Limited Purpose of Exception to Rule Against Hearsay Upon Which It Was Admitted

by Matt Clarke

The Supreme Court of Missouri, sitting en banc, held that the trial court committed prejudicial error by allowing a police detective to testify at trial regarding an out-of-court statement made to police by a person who did not testify at trial to prove the matter asserted ...



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