Discovery Category Archives — Page 5 of 6 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Adverse inferences

August 5, 2009 | The Law Office of Philip D. Cave

From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided for a reason within the control of the adverse “party,” then it can be argued or presumed that the information would have been favorable to the accused. Here is a nice little piece – from a civil case – that is of interest.

District Court concludes duty to preserve electronic and other evidence commenced on pre-complaint telephone call, warranting adverse-inference instruction sanction, in KCH Services, Inc. v. Vanaire, Inc., et al., _ F.Supp.2d _ (W.D. Ky July 22, 2009) (Civil Action No. 05-777-C).

It seems to me that CID/NCIS/OSI/CGIS have a duty to preserve evidence, along with gathering it. To the extent you may be able to find problems with evidence gathering, handling, witness notes or statements, etc., there may be a way to fit the adverse inference into a botched investigation argument. Just a thought.

/tip Federal Evidence blog.

Discovery issues.

July 1, 2009 | The Law Office of Philip D. Cave

There’s at least one federal judge who likes to enforce discovery where the prosecution has a – in my words – self executing duty to produce.

Federal Judge Questions Prosecution Conduct in Ye Gon Case.

“This is the second time in less than three months in a high profile case where the Department of Justice has come before this court and asked it to dismiss an indictment after allegations that Brady-Giglio information was not timely produced to the defense,” Sullivan said today.

Juvenile convictions

June 28, 2009 | The Law Office of Philip D. Cave

Are juvenile convictions subject to discovery and potential use at trial? — Yes.

Mil. R. Evid. 609(d): Evidence of juvenile adjudications is generally not admissible under this rule. The military judge, however, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the military judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Fed. R. Evid. 609(d): Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Based on a fair reading of the Rule the answer is yes, if you can make a connection to the case.

Child abuse allegations: Can you make a credible argument that the child is making a false allegation of physical or sexual abuse. And we know that happens. If you can and the child and you believe the child has a juvenile conviction for a crime involving moral turpitude then the information should be discoverable and useable in cross-examination. Also, I would argue the prosecution has a self-executing [n.1] constitutional duty to turn that information over the to the defense in discovery.

Sexual assault allegations: Do you have a 18 year old enlisted person allegation a sexual assault, alleging sexual harassment, etc. Here again my view is that a juvenile conviction for a crime of moral turpitude is discoverable and admissible. The reason is the age of the “victim” at the time of the complaint and testimony.

Drug offenses: Do you have hee 18 year old narc or alleged co-accused against other alleged druggies. There’s a motive to lie and shift blame. Here again I think the closeness in time and the issue of credibility are the factors and reasons why juvenile convictions for crimes of moral turpitude are discoverable and useable. In drug cases another reason would be to show the witness lied on their enlistment contract or SF86.

Any offense: If there is an indication of a juvenile conviction then there is the possibility of a lie at the time of enlistment or filling out the SF 86. Here it’s not the facts of the conviction, it’s the existence of the conviction to show the witness lied under oath at the time of enlistment or completing the SF86 by failing to disclose or some other misrepresentation.

These are four examples, I’m sure there are more.

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n.1 I have and continue to argue that Brady, Kyles, and other cases create a self-executing duty on the prosecution to seek out and produce certain types of information. Contrary to arguments of some trial counsel, the defense does not need to make a discovery request for this information and the prosecution is required to seek it out.

Prosecution failure to provide credibility related discovery on their witnesses.

June 1, 2009 | The Law Office of Philip D. Cave

A recent Ninth Circuit case highlights the importance of disclosing impeachment evidence and the consequences of failing to do so. The prosecutor requested a criminal history check on a key government witness. The prosecutor indicated he was unaware of the criminal history which was not disclosed to the defense. The defendant was convicted and subsequently the criminal history evidence came to light.

The prosecution’s failure to disclose to the defendant the criminal history of a key witness violated the defendant’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963); the criminal convictions were admissible under FRE 609 and the prior acts of theft or dishonesty were admissible under FRE 608(b), in United States v. Price, F.3d (9th Cir. May 21, 2009) (Nos. 05-30323, 06-30157).

Getting this type of discovery is a frequent problem in military cases. You will notice that Price does not cite to Henthorn. It is unlikely you will find a reference in military cases to Henthorn as a legal standard in the military for background checks on prosecution witnesses. Military discovery is broader than in the civilian community, and you should take the position that Henthorn is more restrictive than contemplated in military practice. An additional argument is that such background checks do not require a discovery request; the duty on the prosecutor is a self-executing one that must be personally done in all cases.

"the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police."

Kyles v. Whitley, 514 U.S. 419 (1995).

Discovery of “confidential” information

April 22, 2009 | The Law Office of Philip D. Cave

D.C. Circuit remands case for district court to determine which company records, including from an internal investigation, were material to the defendant’s defense “and to protect against the public disclosure of material documents in a manner consistent with Thompson’s right to a fair trial,” in United States v. Thompson, __ F.3d __ (D.C. Cir. April 17, 2009) (No. 08-5203).

This is courtesy of Federal Evidence Review blog and is a useful case about discovery. For military cases I suspect this could be an issue most often in computer crimes cases where AOL, Yahoo, etc., cooperate with the police but want to protect their internal “confidential” records and procedures. Well they can do that, but an accused’s constitutional rights will or should override. As the case suggests a court protective order can serve, just as it does in Mil. R. Evid. 412 issues.

More on discovery

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

The prosecution of Senator Stevens highlighted problems with prosecutors who don’t comply with their Brady-plus obligations. Here’s another one.

New Trial Granted Because of Prosecutor Misconduct: Mike Scarcella writes at Blog of the Legal Times that a D.C. Superior Court judge has granted a new trial to a man convicted of fatally stabbing another man in 2007. The new trial was granted because the prosecutor failed to turn over favorable evidence. Apparently, certain grand jury testimony casting doubt on the government’s chief witness was not handed over to the defendant’s public defender until one month after the conviction. Judge Frederick Weisberg was unable to say whether the testimony would have changed the outcome of the trial, but faulted the prosecutor for failing to turn over "patently disclosable" evidence.

Also from Crime & Consequences blog.

Exclusion of video-tape deposition under Crawford.

April 1, 2009 | The Law Office of Philip D. Cave

This case could be very helpful to an accused overseas where the prosecution lets witnesses go PCS or off active duty prior to trial, with the idea that the deposition or Article 32, UCMJ, hearing testimony could be used. Note, this case doesn't talk about MLAT's.

The government’s minimal efforts to contact an “unavailable” witness in Mexico on the eve of trial were not reasonable nor in good faith; the playing of the witness’s video deposition at trial violated the Confrontation Clause; because the error was not harmless beyond a reasonable doubt, the conviction was reversed, in United States v. Tirado-Tirado, _ F.3d _ (5th Cir. March 19, 2009) (No. 07-50670).

While it didn't work in this case, the appellant also sought to argue that, "he was denied a full and fair opportunity to cross examine Garay-Ramirez during the video deposition about new information . . ." This must be a consideration, especially if the depositions or Article 32, UCMJ, hearing have been months before trial, you have had the usual failure of the prosecution to comply with the Production requirements of R.C.M. 405(f)(9)(10)(11)(12) [n.1] at the Article 32, and you have a lot more information and discovery.

Threats by clients

March 27, 2009 | The Law Office of Philip D. Cave

Here is a post from Legal Blogwatch:

Here is a scenario that sounds like a law school exam question.

It was after midnight when the client began to leave a series of

Do military (DoD) lawyers know the meaning of “Brady material?”

March 14, 2009 | The Law Office of Philip D. Cave

Personally, from experience, I'm not sure they do. However, Judge Emmett Sullivan, of the D.C. for D.C. doesn't think so.

Here is an item on The BLT: The Blog of LegalTimes, Judge Threatens Justice Lawyers With Contempt Over Detainee Documents, 13 March 2009.

So-called Brady rules require prosecutors to hand over

Recent A.F.C.C.A. opinions

February 10, 2009 | The Law Office of Philip D. Cave

Yesterday (090209) A.F.C.C.A. updated its online opinions. There are three worth reading for the trial practitioner.

United States v. Curran, ACM 37185 (A.F. Ct. Crim. App. 22 January 2009). This is an interesting issue where the prosecution was allowed to introduce evidence on sentencing about the time and effort involved to investigate the allegations against the accused. The court terms this "Unit Impact Sentencing Evidence," and of course agree it is admissible. The hasten to add that even if error, the error was nonprejudicial because the defense counsel did a great job of minimizing the impact of the testimony. Before you know it we'll be punishing accuseds for exercising their constitutional rights — See United States v. Stephens, 66 M.J. 520 (A.F. Ct. Crim. App. 2008).

United States v. Camnetar, ACM 36448, 2009 LEXIS 40 (A.F. Ct. Crim. App. 30 January 2009). The two issues of interest are a suppression motion of CP found on a DVD as well as computer, and whether the defense counsel failed to adequately investigate an alibi. On the suppression, there is an interesting point about the reliability of the "informant." This is not a true informant case. And of course, even if there is error, the "good faith exception" cures all.