second prong test in District of Columbia

2023Although it is theoretically possible that the best interest of the child can override this presumption, see In re Ta.L., 149 A.3d at 1083 , it is quite difficult “to postulate a realistic factual situation where a ‘fit’ parent can be properly deprived of parental rights” at the second prong of the analysis, Appeal of H.R.

2006As to the second prong of the inquiry, now commonly called a “Frendak inquiry.” The court specified that “[t]he scope of the inquiry ... will vary accord ing to the circumstances present in each case.... ” Frendak, 408 A.2d at 380 .

2006As to the second prong of the inquiry, now commonly called a " Frendak inquiry." The court specified that "[t]he scope of the inquiry . . . will vary according *155 to the circumstances present in each case. . . ." Frendak, 408 A.2d at 380 .

1995The second prong of this test, “Dike] Federal Rule[] of Evidence [608(b)],” asks whether “th[e] [prior bad] acts are ... [‘]probative of truthfulness or untruthfulness.’” 6 Woodward & Lothrop, 598 A.2d at 1150 .

1995Thus, although “this court has not adopted the federal rules,” Sherer v. United States, supra note 5 , 470 A.2d at 738 n. 6, and though the law of the District of Columbia is not necessarily “identical]” to Rule 608(b), see Woodward & Lothrop, 598 A.2d at 1150 n. 11, this court has looked to decisions of the federal courts applying Rule 608(b) in determining whether a bad act “bears directly upon the veracity of the witness in respect to the issues involved in the trial.” See id. at 1150 .

1994Although any evidence, however weak, will satisfy this criteria, Hebron, supra, 625 A.2d at 885 ; Simmons, supra note 3, 554 A.2d at 1170; Lampkins v. United States, 515 A.2d 428, 432 (D.C.1986), a trial court “properly den[ies] the requested instruction ... if there is no factual dispute and a finding to the contrary on the only evidence at issue would be irrational.” Rease, supra note 3, 403 A.2d at 329 (citations omitted).

1994Although any evidence, however weak, will satisfy this criteria, Hebron, supra, 625 A.2d at 885 ; Simmons, supra note 3, 554 A.2d at 1170; Lampkins v. United States, 515 A.2d 428, 432 (D.C.1986), a trial court “properly den[ies] the requested instruction ... if there is no factual dispute and a finding to the contrary on the only evidence at issue would be irrational.” Rease, supra note 3, 403 A.2d at 329 (citations omitted).

1991Sheridan, supra, 267 A.2d at 346-47 .

1991Sheridan, supra, 267 A.2d at 346-47 .

1990Judge Salzman also held that appellants had failed to satisfy the second prong of the test in (Elizabeth) Smith, supra, because they had not shown that the decision to prosecute them was improperly motivated.

1990Citing Adderley v. Florida, 385 U.S. 39, 47-48 , 87 S.Ct. 242, 247-48 , 17 L.Ed.2d 149 (1966), and Leiss v. United States, 364 A.2d 803, 807-09 (D.C.1976), cert. denied, 430 U.S. 970 , 97 S.Ct. 1654 , 52 L.Ed.2d 362 (1977), the judge concluded that appellants had made “no colorable showing that the government violated their First Amendment rights by removing them from the closed Metro station.” Acknowledging that appellants’ conduct had involved expressive activity, Judge Salzman found that the government had a legitimate interest in closing the Metro at midnight “for all purposes,” including

1990Citing Adderley v. Florida, 385 U.S. 39, 47-48 , 87 S.Ct. 242, 247-48 , 17 L.Ed.2d 149 (1966), and Leiss v. United States, 364 A.2d 803, 807-09 (D.C.1976), cert. denied, 430 U.S. 970 , 97 S.Ct. 1654 , 52 L.Ed.2d 362 (1977), the judge concluded that appellants had made “no colorable showing that the government violated their First Amendment rights by removing them from the closed Metro station.” Acknowledging that appellants’ conduct had involved expressive activity, Judge Salzman found that the government had a legitimate interest in closing the Metro at midnight “for all purposes,” including

1990Citing Adderley v. Florida, 385 U.S. 39, 47-48 , 87 S.Ct. 242, 247-48 , 17 L.Ed.2d 149 (1966), and Leiss v. United States, 364 A.2d 803, 807-09 (D.C.1976), cert. denied, 430 U.S. 970 , 97 S.Ct. 1654 , 52 L.Ed.2d 362 (1977), the judge concluded that appellants had made “no colorable showing that the government violated their First Amendment rights by removing them from the closed Metro station.” Acknowledging that appellants’ conduct had involved expressive activity, Judge Salzman found that the government had a legitimate interest in closing the Metro at midnight “for all purposes,” including

1990Citing Adderley v. Florida, 385 U.S. 39, 47-48 , 87 S.Ct. 242, 247-48 , 17 L.Ed.2d 149 (1966), and Leiss v. United States, 364 A.2d 803, 807-09 (D.C.1976), cert. denied, 430 U.S. 970 , 97 S.Ct. 1654 , 52 L.Ed.2d 362 (1977), the judge concluded that appellants had made “no colorable showing that the government violated their First Amendment rights by removing them from the closed Metro station.” Acknowledging that appellants’ conduct had involved expressive activity, Judge Salzman found that the government had a legitimate interest in closing the Metro at midnight “for all purposes,” including

1990Citing Adderley v. Florida, 385 U.S. 39, 47-48 , 87 S.Ct. 242, 247-48 , 17 L.Ed.2d 149 (1966), and Leiss v. United States, 364 A.2d 803, 807-09 (D.C.1976), cert. denied, 430 U.S. 970 , 97 S.Ct. 1654 , 52 L.Ed.2d 362 (1977), the judge concluded that appellants had made “no colorable showing that the government violated their First Amendment rights by removing them from the closed Metro station.” Acknowledging that appellants’ conduct had involved expressive activity, Judge Salzman found that the government had a legitimate interest in closing the Metro at midnight “for all purposes,” including

1988I disagree with the majority that the second prong of the test set forth in United States v. Gonzalez, supra, is actually a harmless error inquiry.

1986To prevail on a claim of ineffective assistance, a defendant must make a two-part showing: first, “that counsel’s performance was deficient,” and second, “that the deficient performance prejudiced the defense.” Id. 8 Defining the type of prejudice that must be shown under the second prong of the test, the Supreme Court held: The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

1986In considering the second prong of this test, Le. whether the violation warrants the revocation of probation, the trial court must balance ‘“the competing interests of the community in safety with the rehabilitative goals of probation.’ ” Smith v. United States, supra, 474 A.2d at 1274 (quoting Thompson v. United States, 444 A.2d 972, 974 (D.C.1982)); see Gagnon v. Scarpelli, 411 U.S. 778, 784 , 93 S.Ct. 1756, 1760 , 36 L.Ed.2d 656 (1973).

1984Accordingly, we will review the context in which the statements were made keeping in mind the underlying rationale of Watts, supra, and the precedent it relies on to determine whether the jury would naturally and necessarily have taken the statements to be comment on appellant’s failure to testify.

1984Accordingly, we will review the context in which the statements were made keeping in mind the underlying rationale of Watts, supra, and the precedent it relies on to determine whether the jury would naturally and necessarily have taken the statements to be comment on appellant's failure to testify.

1972In this case, the hearing judge found the duress had ceased at the precinct but failed to apply the second prong of the test and determine whether the written confession was produced by the “existence of the earlier confession” and was therefore “the product of the erroneous impression that the cat was already out of the bag.” Darwin v. Connecticut, supra, 391 U.S. at 351 , 88 S.Ct. at 1491 .

1972In this case, the hearing judge found the duress had ceased at the precinct but failed to apply the second prong of the test and determine whether the written confession was produced by the “existence of the earlier confession” and was therefore “the product of the erroneous impression that the cat was already out of the bag.” Darwin v. Connecticut, supra, 391 U.S. at 351 , 88 S.Ct. at 1491 .