Articles Posted in Evidence

Restyling The Federal Rules of Evidence (Part III).

The New York Times reports that the Obama administration is considering preserving the military commissions some form. Part of the motivation for that, it is said, is this: "Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered…

We are all familiar with Rock v. Arkansas, 483 U.S. 44 (1987), in which a per se bar against hypnotically refreshed testimony of an accused was held unconstitutional.  Prof. Colin Miller reports that the state of Illnois finds that a per se bar can be applied to witnesses other than…

The Coast Guard has issued an opinion in United States v. McDonald, __ M.J. ___ (C.G. Ct. Crim. App. April 24, 2009).  This opinion discusses why the standard trial counsel sentencing argument in drug pop cases is typically erroneous.  I call it the typical absence of proof problem for trial…

I noticed an article on the Navy JAG NKO site today that should be treated with some caution by defense counsel.  It is entitled Practice Tip:  Presenting medical evidence in a sexual assault case. I have no problem with the beginning and essential premise of the article – the absence…

Mil. R. Evid. 106, is a rule of completeness and applies to both the prosecution and the defense. Rule 106. Remainder of or related writings or recorded statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at…

Here’s an interesting post by Prof. Miller. Colin Miller, Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal, 13 April 2009. Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts.…

A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. …

Here is a post from Prof. Colin Miller reminding us that hearsay within hearsay is still a potential objection to the contents of business records sought to be admitted under a Mil. R. Evid. 803 exception. Prof. Colin Miller, Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay…

According to the MJ ruling in a case I just completed in Korea, the Intoxilyzer SD2 is reliable if administered in accordance with its instruction manual and the applicable AR.  However, at Camp Casey, Korea, they are not admissible.  That is because the MP's do not conduct proper calibrations in…