Evidence Category Archives — Page 22 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Right to present a defense

April 13, 2009 | The Law Office of Philip D. Cave

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. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:

Post-trial R.C.M. 917 motions

March 29, 2009 | The Law Office of Philip D. Cave

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. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).

Rule 29. Motion for a Judgment of Acquittal

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.

Hearsay within hearsay

March 29, 2009 | The Law Office of Philip D. Cave

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 Was Improperly Admitted, EvidenceProf blog, 28 March 2009.

The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 08- 50130 (9th Cir. March 27, 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.

Are military breath tests reliable?

March 26, 2009 | The Law Office of Philip D. Cave

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 accordance with the test instructions and AR on how Army breath tests are to be conducted. For the military judge this failure constitutes a major departure from the regulation and not a minor failure.

Note: this is a Joint regulation applicable to all of the Services:

AR 190-5; OPNAVINST 11200.5; MCO 5110.1; AFI 31-218(I)

MRI as a lie detector

March 19, 2009 | The Law Office of Philip D. Cave

There's an interesting case going on in (southern California of course) where the defense is seeking to offer.

Defense attorneys are for the first time submitting a controversial neurological lie-detection test as evidence in U.S. court.digg_url ="http://blog.wired.com/wiredscience/2009/03/noliemri.html";

In an upcoming juvenile-sex-abuse case in San Diego, the defense is

After the Outlook section

March 18, 2009 | The Law Office of Philip D. Cave

Federal Evidence Review has put up a very good list of Supreme Court cases that impact evidence issues in a case. The list "includes constitutional, statutory, and Federal Rules of Evidence – based evidence-related cases." The list is by its nature discretionary and subject to change, but a useful reminder. Who knows, the Supreme Court may eventually issue an opinion in Melendez-Diaz.

Article 32, UCMJ, testimony of a co-accused or witness.

March 17, 2009 | The Law Office of Philip D. Cave

Every so often the defense wants a co-accused to testify because they have something beneficial to say and they have already said it at the Article 32, UCMJ, hearing. As we know, the prosecution almost never willingly immunizes the witness, and judges don't always force the issue. (Odd how that happens to the defense, but never the prosecution.)

Anyway, check out, Federal Evidence Review's, item, Former grand jury testimony of cooperating witness should have been presented to the jury under FRE 804(b)(1); Ninth Circuit adopts broad application of “similar motive” requirement, in United States v. McFall, _ F.3d _ (9th Cir. March 9, 2009) (No. 07-10034).

This is a case where the alleged co-accused's testified to Brady material (my construction of this) at the grand jury hearings in the case. Of course the prosecution objected to having the grand jury testimony of the witnesses played at the accused's trial. The witnesses had invoked their Fifth Amendment privilege at trial. The government wasn't interested in having the witnesses evidence before the jury so they had not called the witnesses themselves, even though the witnesses had agreed to cooperate with the prosecution.

Military Rules of Evidence.

March 16, 2009 | The Law Office of Philip D. Cave

Rule 1102. Amendments. Amendments to the Federal Rules of Evidence shall apply to the Military Rules of Evidence 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

On September 19, 2008, Fed. R. Evid. 502, a new evidence rule concerning the attorney-client privilege and work-product doctrine, was enacted. See Pub. L. No. 110-322, 122 Stat. 3537.

Pending Rule Amendment: Fed. R. Evid. 804(b)(3) (Declarations Against Interest)

Is the Intoxilyzer 5000 racially and genetically biased?

March 15, 2009 | The Law Office of Philip D. Cave

There may be a legitimate question that the Intoxlyzer 5000 does discriminate against African-Americans. This test is in use throughout much of DoD. It seems at least worth researching and filing a Houser motion in regard to this technology if your client is African-American, and perhaps if the client is a woman. See United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993), which sets out six factors a judge should use to determine the admissibility of expert testimony. In my view, Houser can be used also to challenge the actual “science” underlying testimony for something such as a breath-test machine. In United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999), the Court of Appeals for the Armed Forces makes specific the application of the Daubert factors under a Houser analysis.

Colin Miller, KKK In A Box?: Connecticut To Replace Controversial Intoxilyzer 5000 With Equally Controversial Alcotest 7110 MKIII-C, EvidenceProf Blog, 15 February 2009.

The basis for this claim is that that “Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and with his own research determined the Intoxilyzer 5000 does not adequately test black men.” (Specifically, according to Hlastala, the lung capacity of an African-American male is approximately 3% smaller than that of a Caucasian. “Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, [and] the Intoxilyzer 5000 results are inflated by a factor of 3 percent,” Hlastala concluded).

CAAF grant.

March 13, 2009 | The Law Office of Philip D. Cave

Here is an interesting CAAF grant in a Coast Guard case.

No. 08-0719/CG. U.S. v. Webster M. SMITH. CCA 1275. Review granted on the following issue:

WHETHER THE MILITARY JUDGE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS BY LIMITING HIS CROSS-EXAMINATION OF [SR], THE GOVERNMENT'S ONLY WITNESS, ON THREE OF THE FIVE CHARGES.