# Anderson v. United States

> District of Columbia Court of Appeals · August 19, 2004 · 857 A.2d 451

URL: https://www.frixlaw.com/law-library/cases/9757307

## Case

- **Full name:** Steven ANDERSON, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** August 19, 2004
- **Citations:** 857 A.2d 451; 2004 D.C. App. LEXIS 425; 2004 WL 2035025
- **Precedential status:** Published
- **Opinion:** Concurrence by Schwelb
- **Judges:** Schwelb, Steadman, Belson
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757307

## Opinion text

SCHWELB, Associate Judge,
concurring:
I concur in the judgment and join the court’s opinion. Nevertheless, I continue to adhere to the views I expressed in my separate opinion in Daniels v. United States, 613 A.2d 342, 349-50 (D.C.1992). A proffer is a statement of counsel. A statement of counsel is not evidence. Therefore, a proffer is not and cannot be “clear and convincing evidence.”
The explanation that a prosecutor’s proffer as to what the evidence will show is itself clear and convincing evidence if it is credited reminds me of a dog chasing its own tail. Evidence is credited because it is “convincing”; if it is not convincing, the trier of fact will not believe it. Our current doctrine, on the other hand, supposes that a proffer is convincing (and clear too) “if believed.” Maj. op. at 457 (quoting Daniels, 613 A.2d at 347 ). Apparently, as a very able colleague told me about another case soon after I joined this court, “common sense has nothing to do with it.”
I was of the opinion twelve years ago, when Daniels was decided, that we should conform our jurisprudence to Huddleston v. United States, 485 U.S. 681, 685 , 108 S.Ct. 1496 , 99 L.Ed.2d 771 (1988), and that we should stop pretending that a proffer is clear and convincing evidence when it obviously is not. Nothing in the intervening twelve years has persuaded me that our illogical handling of this issue is superior to the straightforward approach adopted by all nine Justices in Huddleston .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757307. Public record. Not legal advice.