Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection. Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments. This is a particular bugaboo of my when LE…
Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014. Key Evidence Issues During 2013 1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental…
It is unusual in military cases to have evidence of microscopic hair analysis. But, it’s worth keeping up on, just in case. Also, the point below is further substantiation of the National Academy of Sciences critique of forensic “science” evidence. A 2009 news release on the NSA report had this…
Prof. Colin Miller asks, and then gives. The recent opinion of the United States District Court for the Southern District of Florida in Dingman v. Cart Shield USA, LLC, 2013 WL 3353835 (S.D.Fla. 2013), addresses three interesting questions under Federal Rule of Evidence 609: (1) are convictions resulting from nolo…
If a witness fails to object? What if the witness has discussed all with the prosecutor? Anyway . . . Fourth Circuit concluded it did not need to determine the scope of the psychotherapist-patient privilege since the respondent had waived any privilege; circuit notes the obligation "to timely assert the…
Prof Colin TG Miller has this post. In Crane v. Kentucky, the Supreme Court found that: "[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present…
“That’s the Guy!”: Federal Rule of Evidence 801(d)(1)(C) and Out-of-Court Statements of Identification Found in 34 CARDOZO L. REV. 1539
Occasionally the prosecution wants to use court records, There is an evidentiary exception that can apply. But, what about the Confrontation Clause? Federalevidence review has a post on that. Eighth Circuit reverses conviction for being an accessory after the fact by assisting another (Clark) in avoiding apprehension for committing a…
The various breath test instruments used by the military and civilian police are subject to challenge, for a number of reasons. Here’s a “report” about the Intoxilyzer 8000 courtesy of PS.
Prosecutors ask CID, NCIS, OSI, CGIS agents all the time why they didn’t believe the accused in the interrogation. The answer often is a variant of, “he was nervous.” Yeah, right. First they are told and usually escorted to the LE office. The escort won’t tell them why or what’s…