For those for who baseball is a drug, here is a good piece from Federal Evidence Review. Not only is this a baseball story, but it also has some teaching points about the law of evidence in drug prosecution cases. On Eve Of The Barry Bonds Perjury Trial, Government Appeals…
United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006). Federal Evidence Review draws attention to this case on the issue of law enforcement testimony. The case involved drugs. In military prosecutions we have similar situations where law enforcement testifies about drugs. The circuit concluded that plain error resulted: “We…
In a cautionary tale, Prof. Colin Miller, If You Were In The Public Eye: Kentucky Court Finds That Third Party Statements Were Properly Excluded From A Public Report, EvidenceProf Blog, 24 February 2009. Professor Miller draws attention to a Kentucky case which has relevance to Mil. R. Evid. 803(4), the…
The oral argument transcript is now available in Rivera v. Illinois.
Prof. Colin Miller, The Sense Of The Past: Third Circuit Corrects Worst Present Sense Impression Ruling I Have Ever Seen, 23 February 2009. United States v Green, 2009 WL 385423 (3rd Cir. 2009). over Green's vigorous objection, the Government was permitted to introduce as substantive evidence a statement that Brown…
Attorney-Client Privilege Protection Act of 2009 Is Introduced In the Senate (S. 445). Federal Evidence Review notes that Sen. Specter has re-introduced a bill that protects attorney-client privileged and work-product privileged information from use by prosecutors. This may, or may not, assist with the current issue about military email "access"…
Can Self-Authenticated, Certified Business Records Violate The Confrontation Clause? Federal Evidence Review, 30 July 2008. Pointing to United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. 2008), the reviewers posit that Fed. R. Evid. 902 (Mil. R. Evid.) leads to "testimony" in violation of Crawford v. Washington, 541 U.S. 36…
Here, courtesy of Federal Evidence Review, is the proposed change to Fed. R. Evid. 804(b)(3). Should this become the federal rule, it will become the military Rule 18 months later, absent affirmative action to the contrary. It's my understanding that the public comment period has closed.
United States v. Fisher, ARMY 20080012 (A.Ct.Crim.App. 20 February 2009). This case was submitted on its merits. After a review, the court specified two issues, both of relevance to trial advocates and military judges. After finding error, the court found no relief warranted because the error was not prejudicial. We…
Prof. Peter Tillers, How Distinctive Must a Modus Operandi Be to Serve as a "Signature"? Tillers on Evidence and Inference, 13 February 2009. Military Rule of Evidence 404(b), United States v. Huddleston, 485 U.S. 681 (1988), are at the heart of Prof. Tillers' critique. In his view the rules requiring…