Evidence Category Archives — Page 11 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Confrontation and authenticating IP documents and reports in CP cases

November 15, 2012 | The Law Office of Philip D. Cave

Here is an interesting case from the First, United States v. Cameron, decided 14 November 2012. The issue is confrontation and the admission of various internet provider records. I think this case helpful in litigating the paper that the prosecution seeks to use in CP cases.

We thus presume that Cameron’s challenge is to the following categories of evidence: (1) the Yahoo! Account Management Tool and Login Tracker data — this data was attached to the CP Reports and was also produced in response to search warrants; (2) electronic receipts of Yahoo’s CP Reports to NCMEC — these receipts were produced by Yahoo! in response to search warrants; (3) NCMEC’s CyberTipline Reports to ICAC; and (4) the Google Hello Connection Logs.

Forfeiture by wrongdoing

September 21, 2012 | The Law Office of Philip D. Cave

As Prof. Colin Miller TG points out in a new post, Fed. R. Evid. 804(b)(6), applies to both sides. The Mil. R. Evid. contains the same language.

For an example of a case in which the government forfeited its right to object to the defendant’s admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).

Prof. Miller concludes:

Standard motion in CP cases

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

Here, from Prof. Berman TG at Sentencing Law & Policy is a reminder about evidence in CP cases. I think most of us already do this, and a number of prosecutors already think of this.

A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:

David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.

The new privilege for victim-advocates does not apply

August 26, 2012 | The Law Office of Philip D. Cave

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798).

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Bite mark evidence and testimony-defense resource

August 26, 2012 | The Law Office of Philip D. Cave

Occasionally there is a case involving bite mark evidence and testimony. This type of testimony is subject to challenge under Houser. Here I am talking about a case where the bite mark testimony goes to prove the identity of the accused.

So, to that end the defense needs resources to challenge admissibility of the evidence under Houser and also to evaluate and challenge evidence if it is admitted by the military judge.

THE INNOCENCE PROJECT (IP) is a national litigation and public policy organization based in New York dedicated to exonerating wrongfully convicted individuals through DNA and reforming the criminal justice system to prevent future injustice. As the DNA exonerations have revealed, the misapplication of forensic science has been a leading cause of wrongful convictions. The newly created Strategic Litigation unit is aimed at, among other things, eliminating junk science from courtrooms nationwide, beginning with bite mark comparison evidence. To that end, IP seeks to partner with an attorney(s) on criminal cases involving bite mark comparison. Attorneys with cases meeting the following criteria should contact IP directly.

Favorite topic-investigator bias

August 21, 2012 | The Law Office of Philip D. Cave

Except in a slightly different context, but still a similar point.

Errin Morris, Cognitive Biasl and Evaluation of Forensic Evidence, The Champion, NACDL, May 2012.

Remember, USACIL and all the others get a full brief sheet on why the evidence should be tested and lots of facts. The subsequent testing is not done in the blind.

Wikipedia as a reliable source

August 19, 2012 | The Law Office of Philip D. Cave

Well, I use Wikipedia for research. But, I use it “in some limited situations . . . for getting a sense of a term’s common usage." Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011), Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads” The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").).

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Impeachment by . . .

August 5, 2012 | The Law Office of Philip D. Cave

To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that

A statement is not hearsay if:

1. The declarant testifies and is subject to cross-examination about a prior statement.

2. The declarant testified under oath at a prior “hearing” or “or proceeding.”

Prior sexual assault allegations

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

In trial of defendant for sexually abusing two minors, the admissibility of evidence that victims had made false accusation of sexual abuse against others was admissible, not under FRE 403, FRE 412, or 608(b), but rather under the Sixth Amendment Right to Confrontation, in United States v. Frederick, 683 F.3d 913 (8th Cir. July 5, 2012) (No. 11-1546).

h/t federalevidence.com

We hold that the military judge improperly limited cross-examination of the prosecutrix by precluding defense questions concerning her diary, a prior false rape claim, and two prior false claims concerning her health. U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986); seeMil.R.Evid. 608(c), Manual for Courts-Martial, United States, 1984. We also hold these constitutional errors were not harmless beyond a reasonable doubt and require a rehearing. See generally Olden v. Kentucky, 488 U.S. 227, 233, 109 S. Ct. 480, 484, 102 L. Ed. 2d 513 (1988).

United States v. Bahr, 33 M.J. 228, (C.M.A. 1991).

Confinement and MRE 609(b)

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

Impeachment with conviction.

Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial. But if there were to be a prior conviction there may be some interpretation necessary. So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we go.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Eleventh Circuit sidestepped the most interesting issue in the case.