Evidence Category Archives — Page 10 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

CP and 414

January 10, 2013 | The Law Office of Philip D. Cave

As noted in yesterday’s post, Federal Rule of Evidence 414(a),

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let’s take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).

More on eyewitnesses

December 18, 2012 | The Law Office of Philip D. Cave

Slate has a piece,

The Catch-22 of Eyewitness ID, Juries trust the memory of witnesses even when they shouldn’t.

h/t How Appealing.

More on eyewitness testimony reforms

December 16, 2012 | The Law Office of Philip D. Cave

I’ve posted already about the Oregon case – Oregon v. Lawson.

Here is a piece from the excellent Concurring Opinions blog about eyewitness testimony.

I would like to underscore Brandon’s point about reform efforts that are currently underway. While for the most part, the criminal justice process is stuck in a bad place (thanks to a large degree to the US Supreme Court), it is refreshing to note that a few local and state jurisdictions are moving ahead with thoughtful reforms.

Sentencing

December 10, 2012 | The Law Office of Philip D. Cave

Prof. Berman notes a unique “stale” murder/rape case in Illinois.

Speaking of the Supreme Court, two recent rulings by the Justices, Gall and Pepper, made much of considering under federal sentencing law the positive post-offense behavior by a defendant. In this case, it seems the defendant was a model citizen for more than five decades, during which time he apparently served our country in the armed services and served his local community as a police officer.

To some extent military courts already factor positive post-offense service as a sentencing consideration – it can be mitigating and show rehabilitative potential under R.C.M. 1001.

Resources in forensics bias from a different perspective

December 9, 2012 | The Law Office of Philip D. Cave

I have mentioned this article before, Michael D. Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock?, 64 ALBANY L. REV. 99 (2000). The basic theme:

This article shows that, as to proffers of asserted expert testimony, civil defendants win their Daubert reliability challenges to plaintiffs’ proffers most of the time, and that criminal defendants virtually always lose their reliability challenges to government proffers. And, when civil defendants’ proffers are challenged by plaintiffs, those defendants usually win, but when criminal defendants’ proffers are challenged by the prosecution, the criminal defendants usually lose. The article then goes on to examine, in detail, various categories of expert proffers in criminal cases, including “syndrome evidence,” polygraph, bite mark, handwriting, modus operandi, and eyewitness weakness, to shed light on whether the system bias revealed in the statistical breakdown is illusory or real. Finally, an afterword analyzes the last year’s cases, and makes observations on apparent trends.

I revisited the above because of reading today’s post on on the Concurring Opinions blog, about “Convicting the Innocent.” There is a comment to the post by Prof. Garrett asking, “if there is a double standard in forensics concerning exculpatory versus inculpatory evidence?”

Checking it twice

December 8, 2012 | The Law Office of Philip D. Cave

Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system. It seemed to work.

Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols, Texas Tech Law Review, Vol. 45, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper, 2012-70. Available at SSRN: http://ssrn.com/abstract=2181301. The author

argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials – notably judges, whose judgments depend on that process – should assume greater responsibility. The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.

Notice and demand rule change

December 4, 2012 | The Law Office of Philip D. Cave

Federal evidence review brings us information about a proposed change to Fed. R. Evid. 803(10), which by operation of Mil. R. Evid. 1102, will become “law” for courts-martial absent Presidential action (18 months after the effective date of any FRE amendment). This is an occasional issue in fraud and some theft cases.

[T]he draft amendment “would permit a prosecutor who intends to offer a certification to provide written notice of that intent at least 14 days before trial. If the defendant does not object in writing within 7 days of receiving the notice, the prosecutor would be permitted to introduce a certification that a diligent search failed to disclose" a public record or statement. Under this approach, the government would not have to produce a witness to testify about the absence of the record. The proposed amendment conforms with the "notice and demand" approach approved by the Supreme Court’s in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which called into question under the Confrontation Clause the admission of certificates to prove the absence of a public record to be used at a criminal trial.

Forensics

December 1, 2012 | The Law Office of Philip D. Cave

Here is a link to a useful site all about DNA.

And here is a link to the NIJ forensics site.

The Ayes have it

November 30, 2012 | The Law Office of Philip D. Cave

The Supreme Court of Oregon has revisited its 30-year old rule that allowed for admission of eyewitness identification resulting from “unduly suggestive pretrial identification procedures.”

State v. Lawson consolidates two cases on the same issue, and decides en banc to recognize significant changes in the understanding and science of eyewitness identification.

The court discussed State v. Classen and its two-step five (nonexclusive) factors to consider whether an identification was “independent of suggestive procedures.” Classen had relied on Manson v. Brathwaite, 432 U.S. 98 (1977), wherein the Supremes “determined that reliability was the linchpin in determinations regarding the admissibility of identification testimony.”

Cross examination as to credibility

November 17, 2012 | The Law Office of Philip D. Cave

Here is an interesting case from the Tenth, about cross-examination of a witness about a prior judicial “finding” that the witness was not credible — United States v. Woodard.

The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.” U.S. Const. amend. VI. One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315 (1974). This is the“principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316. A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.” United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted). Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’” Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).