My good friend Bill Cassara and I have done a lot of BAH/TCS fraud cases at court-martial under the UCMJ over the years. Typically the case involves a lot of documents from DFAS. The prosecution then calls a witness from DFAS to lay a foundation for the documents and then…
MAJ Hasan’s UCMJ Article 32 hearing and likely court-martial is drawing and will continue to draw lots of attention — of course, duh. But just as we have seen in other high profile cases there are opportunities for what I call teachable moments. Here are two from the item posted…
“Now what I want is, Facts.. . . Stick to Facts Sir!” (Charles Dickens, Hard Times, p. 1, Oxford World’s Classics, 1998.) Evidence may be admissible under Mil. R. Evid. 803(8) as an exception to the hearsay rule. Prof. Colin Miller reminds us that the exception is intended to cover…
Here’s a reminder about authenticating emails based on a posting from Prof. Colin Miller at EvidenceProfBlog. To paraphrase Prof. Miller: And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that By way of illustration only, and not by way of limitation, the following are examples of authentication or identification…
The CAAF Daily Journal for 14 September 2010 notes the filing of a petition for review by John M. Diamond. Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial. According to court documents, witnesses for…
In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz. Note Blazier is still undecided. In the Air Force case the defense did not object, in the Navy case the defense did object. No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:…
Is how one of my favorite evidence blog prof’s describes a First Circuit case. I have previously commented on the issue in relation to MJ McDonald’s Army Lawyer article. Federal Rule of Evidence 605 provides that The judge presiding at the trial may not testify in that trial as a…
I have been routinely filing a motion in-limine in cases where I expect the prosecution witnesses, typically law enforcement or DFAS, to be providing context testimony. There are several bases to object: hearsay is bootstrapped, there is implied human lie detector testimony, there are Mil. R. Evid. 701 fact wrapped…
United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010). (Thanks to an early posting of the decision by CAAFLog.) Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness. Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining…
Federal Evidence Review has a good reminder that what may appear to be statements admissible as excited utterances may not in fact be so. Thus, defense as always your job is to ensure that the prosecution doesn’t get away with ritualistic or talismanic incantations of, “it’s an excited utterance (or…