The inability to remember in court, what about it?
If the witness testifies in court that the traffic light was green, and in a prior statement to police they said it was red. That’s a prior inconsistent statement. The witness may be impeached. Asked the “on x to officer X, did you say red,” get the yes, move on; or get the no and offer the inconsistent statement.
But what if the witness says I don’t remember or I think it was amber, and you have a prior statement that the witness told the police officer it was red.
Well, this comes up in cases all the time. Especially the complaining witness, “I don’t remember,” or there’s an equivocation.
Check out United States v. Damatta-Olivera, 37 M.J. 474 (C.M.A. 1993) and United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005).
Paul C. Giannelli (Case Western Reserve University School of Law) has posted The 2009 NAS Forensic Science Report: A Literature Review (48 Crim. L. Bulletin 378 (2012)) on SSRN. Here is the abstract:
In February 2009, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (2009). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”
Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious deficiencies have been found in the forensic evidence used in criminal trials.” Both the Senate and the House held hearings, and a bill was introduced in Congress. In addition, the President appointed a committee on forensic science.
Several law schools held conferences on the report, and a number legal journals published symposia. Law review articles variously described the report as a “blockbuster,” “a watershed,” “a scathing critique,” “a milestone,” and “pioneering.” This essay briefly discusses some of these articles as well as aspects of the congressional hearings.
I have from time to time filed writs of error coram nobis, most recently in United States v. Graner.
Courtesy of CrimProfBlog here is an excellent case reviewing the writ of error coram nobis. The court discusses the history of the writ and the three part test to considered. Note they cite extensively to United States v. Denedo.
The writ of error coram nobis is of ancient lineage, tracing its roots to sixteenth century English common law. See Sawyer, 239 F.3d at 37. Its original purpose was to promote respect for the judicial process by enabling a court to correct technical errors in a final judgment previously rendered. See United States v. Denedo, 129 S. Ct. 2213, 2220 (2009). In the United States, the office of the writ has expanded well beyond the reopening of a final judgment to correct technical errors. See id. In federal criminal cases, the writ is now available as a remedy of last resort for the correction of fundamental errors of fact or law. Trenkler v. United States, 536 F.3d 85, 93 (1st Cir. 2008).
Not sure, that’s the conclusion of a study done by the National Research Council.
h/t Prof. Berman at Sentencing Law & Policy
You need to know about collateral effects of a court-martial conviction:
Voting
Firearms
Immigration status
Sex offender registration
Death penalty
And now, should you have a special competence with forensics?
Funk & Berman on Attorney Competence in Forensics
Christine Funk and Evan Berman have posted Rising to the Challenge of the NAS Report ‘Strengthening Forensic Science in the United States: A Path Forward’: A Call for Demonstrated Competence Amongst Legal Practitioners (William Mitchell Law Review, Vol. 37, No. 2, p. 683, 2011) on SSRN. Here is the abstract:
The 2009 report issued by the National Academy of Science, "Strengthening Forensic Science in the United States: A Path Forward," highlighted many of the shortcomings of forensic science as it is currently being presented in criminal and civil courts across the country. To a lesser extent, the report addressed the shortcomings of prosecutors, defense attorneys and judges, who receive, interpret, (or attempt to interpret) and utilize forensic science.
With the current system "inadequate to the task of curing the documented ills of the forensic science disciplines" (NAS Report "Strengthening Forensic Science in the United States: A Path Forward" (2009) at 85), the system needs to change. This article offers a review of the changing legal landscape and calls for raising the competence bar for practitioners in the criminal justice system through imposing minimum standards for legal practitioners who handle forensic science in court.
h/t Prof. Berman at Sentencing Law & Policy
The government wants to offer data from a computer or some other mechanical or recording device.
Can a NCIS agent testify about the contents. No. That violates the best evidence rule, Mil. R. Evid. 1001.
Courtesy of federalevidence.com here is a link for a recent case dealing with GPS information:
Ninth Circuit reverses an importation conviction based on the admission of testimony about GPS data which violated the best evidence rule; case demonstrated the application of the best evidence rule under FRE 1002, in United States v. Bennett, 363 F.3d 947 (9th Cir. 2004)
The Best Evidence Rule under FRE 1002, which can be misapplied, requires “the original writing, recording, or photograph” to be introduced when offered to “prove the content of a writing, recording, or photograph,” unless some other exception governs. A Ninth Circuit case demonstrated application of this rule to global positioning system ("GPS") information.
Not sure the value – but I’m tracking the impending release of this publication:
Apparently written for civilian attorney’s representing current or former military personnel, it may well have resources, ideas, and guidance for the military practitioner.
Major Evan Seamore, Chief of Military Justice for the U.S. Army Maneuver Center of Excellence, Fort Benning, GA, is in there in Chapter 13.
I did notice a typo in the table of contents; they refer to “capitol” cases.
They have a prepublication price of $104. Not sure the post-publication price.
Quite a few cases, especially the sexual assault ones arriving recently have involved text and chat messages as potential evidence against the client.
As is to be expected, most of the time the investigators do not seize and clone the phone to preserve evidence (although I am dealing with one CID office at Fort Lee that has done that with one of several phones). This is a failure to investigate, and as always is to be expected. What they usually do is photograph the “relevant” by their definition texts on the phone screen and nothing more.
Keep in mind that Mil. R. Evid. 106 AND 304(h)(2) apply to these texts and chats.
Another serious consideration is the possibility of fake texts and messages. A few years ago the ability to fake texts or chats was limited. Now however, there are a number of free or very inexpensive applications that can be downloaded to an iPhone or Android phone or computer. Here are some links.
http://www.mobilemadly.com/2012/01/make-fake-text-sms-call-on-android-phone.html
http://itunes.apple.com/us/app/fake-a-message-free-mms-sms!/id366024390?mt=8
http://www.makeuseof.com/dir/fake-iphone-text-fake-iphone-text-conversation/
http://www.androidzoom.com/android_applications/fake+text
http://leimobile.com/send-fake-text-messages-with-spooftexting-for-iphone/
This is why the failure to seize the phone as evidence is significant. You need the phone to investigate, and if possible prove that the complaining witness faked the texts. That has to be done through forensic examination of the phone if necessary. Also, you need the other persons phone if possible. Let’s say a complaining witness says your client sent a text. There ought to be evidence of that on your client’s phone; if not suspect a fake message. You also need to check the phones to find evidence of a ‘fake message app.’
It is very difficult months after the investigators and prosecutors failures to investigate to attack evidence that you believe may be false. We know prosecutors won’t because it doesn’t help them and they’d have to do some work.
