A constant frustration – how to impeach (and typically with the book is sitting there on counsel table).
Complaining Witness: Blah, blah, blah.
Defense counsel: Now Ms. Complaining Witness you received an Article 15 . . . . (“Objection,” – “Sustained.” [DC looks at judge with a ‘what did I just do’ attitude.]).
Federal Evidence Review notes the following:
In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)
It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.
Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that
Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.
Thanks to Professor Colin Miller for this piece.
In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).
Professor Colin Miller has posted an excellent piece about the current status of expert testimony about the inaccuracies of eyewitness identification.
I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.
Thanks to Federal Evidence Review for a good summary of cases and issues involving 404(b) issues in federal courts.
Here is a case from federalevidence.com:
Supervisor expert testified about his role in the peer review process; passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause; circuit also distinguishes Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), in United States v. Turner," _ F.3d _ (7th Cir. Jan. 12, 2010) (No. 08-3109)
A recent Seventh Circuit case revisits the issue of expert testimony which refers to the analysis of another expert. Is the Confrontation Clause violated when a supervisor testifies about the peer review process, his role in confirming reviewing the test results, and the initial results of another chemist? On the fact of the case, the circuit concluded there was no constitutional violation.
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth…matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.
In other words, police reports are not admissible in criminal cases. But why? That was the question addressed by Judge Posner in his recent opinion in United States v. Hatfield, 2010 WL 114930 (7th Cir. 2010), although his analysis was irrelevant to his conclusion.
That left the Seventh Circuit with the question of why police reports are inadmissible in criminal cases. The court noted that
Every so often the comes up of impeachment by prior conviction under Mil. R. Evid. 609. The reminder is that:
The fact of a pending appeal does not defeat admission, but it may be brought up and discussed. Mil. R. Evid. 609(e).
A summary court-martial may not be used to impeach under this rule. There may be other ways to impeach with conduct subject to discipline at a summary court-martial, but not Mil. R. Evid. 609. (Further evidence that an SCM is not considered a “conviction?”)
Prof. Collin Miller has this item on his blog which is an excellent reminder about objections – an issue for the defense much more than prosecution.
You’ve seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, "Objection, your Honor," and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, "Objection," in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.
Mil. R. Evid. 103(a)(1) requires that when making a motion counsel at court-martial, “[state] the specific ground of objection, if the specific ground was not apparent from the context[.]”
Court-Martial Trial Practice Blog