Evidence Category Archives — Page 15 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Evidence – reporter privilege

December 25, 2009 | The Law Office of Philip D. Cave

FederalEvidence blog has this update on the status of a reporter privilege. As commented earlier, under Mil.R. Evid. 1103, any new evidence rule will become applicable to court-martial cases.

After many weeks of being listed on the Senate Judiciary Committee business calendar, on December 10, 2009, the Senate Judiciary Committee approved by a vote of 14 to 5 an amended version of S. 448, the Free Flow of Information Act of 2009.

The Federal Evidence Review will continue to monitor action on the House and Senate measures. For more information concerning the legislation, see Free Flow of Information Act of 2009 Legislative History Page.

Co-conspirator reminder

December 24, 2009 | The Law Office of Philip D. Cave

With a seasonal title, Prof. Colin Miller reminds us of a particular caution when seeking to admit statements of a co-conspirator – the statements have to be made before the crime is committed. There should be the same impact in a court-martial prosecution under the UCMJ.

Prof. Colin Miller, Later On, We’ll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions.

As the text of this Rule [Indiana/Fed./Mil. R. Evid. 801(d)(2)(E)] makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated.

Eyewitness identification

December 24, 2009 | The Law Office of Philip D. Cave

I have done several posts on this blog (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. 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. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

Blogs Prof. Collin Miller. Note that the Military Judges’ Benchbook already has an instruction about cross-racial identification for use at court-martial. Prof. Miller:

"'[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.’"…Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present….For example, people identify members of their own race with greater accuracy than they do members of a different race….In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit’s appearance, and the presence of a weapon or other distractions….Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications….Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy….That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.

Limiting instructions

December 24, 2009 | The Law Office of Philip D. Cave

Here I’m talking about limiting instructions at court-martial, not alleged curative instructions.

A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes. Here is a reminder from federalevidence blog of how that works.

In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)

Background testimony by police

November 13, 2009 | The Law Office of Philip D. Cave

I have previously noted the First Circuit’s criticism of prosecutors calling police to set the “context” of an investigation. The view being that’s it’s an attempt to have the police testify to a whole lot of inadmissible evidence and hearsay, and prejudice the members. The same issue should be avoided and objected to in a court-martial.

Prosecution “overview” witnesses and More on groundwork.

According to a post at FederalEvidenceBlog, the Tenth Circuit is joining in condemning the “apparently widespread abuse” of “background” testimony.

Prosecution witness psych records?

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

Here’s a case discussing access to mental health records of a primary prosecution witness.

This was a due process and confrontation case. Here, as is not an infrequent issue, the prosecution succeeded in having damaging information about their witness excluded. The prosecution then went on to give an “incomplete and inaccurate picture” of their witness. The prosecution did this knowing full well that they were presenting a misleading picture. (Why that’s not prosecutorial misconduct I have no idea. [N.1])

The majority held that the Confrontation Clause was violated by the restrictions on cross-examination about the informant’s mental health and use of prescription medication. The jury was deprived of evidence concerning his ability to perceive and recall what transpired and the informant’s credibility. On this point, the majority noted:

Future MRE change – maybe?

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

Professor Colin Miller at Evidence Prof blog draws attention to a Wisconsin Law Journal article about a proposed change to Fed. R. Evid. 804.

In September, the Judicial Conference of the United States adopted the recommendation of the Advisory Committee on Evidence Rules to amend Federal Rule of Evidence 804(b)(3) so that prosecutors, as well as defendants, need to present evidence of corroborating circumstances before admitting statements against interest. This change is based upon opinions by certain courts already adding this requirement, such as the Seventh Circuit in United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990), and the Fifth Circuit in United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

The article notes that the proposed rule change was not controversial because "It operates only against the government, and the government did not oppose it." The government’s lack of opposition was likely based upon the fact that the proposed rule is clearly fair.

Federal Rules

October 11, 2009 | The Law Office of Philip D. Cave

At a September 2009, meeting the Federal Rules Committee approved and forwarded a number of changes to federal practice. Of note to military practitioners, about 2 years from now, is Fed. R. Evid. 804 and its changes. I say that long because Mil. R. Evid. 1102 doesn’t require adoption until 18 months after the federal rule is adopted.

Here is a link to the report. the proposed amendment starts at page 167 in .pdf view.

NMCCA instructional error case.

October 9, 2009 | The Law Office of Philip D. Cave

Since 1 October 2009, NMCCA has issued four new opinions. Here is United States v. Holmes, __ M.J. ___ NMCCA 200800501 (N-M Ct. Crim. App. 8 October 2009)( a Judge Meeks case of Wuterich fame). The other cases are sentence appropriateness and the usual administrativa.

The appellant’s sole assignment of error is that the military judge erred by failing to instruct the members that self-defense was a defense to negligent homicide. . .

We conclude the military judge erred to the material prejudice of appellant’s substantial rights. . .

DOD Authorization Act Conference Committee Report.

October 8, 2009 | The Law Office of Philip D. Cave

Thanks to CAAFLog, here is a link to the above report.

Here are the most pertinent sections affecting military justice trial practitioners.

SEC. 512. MEDICAL EXAMINATION REQUIRED BEFORE ADMINISTRATIVE SEPARATION OF MEMBERS DIAGNOSED WITH OR REASONABLY ASSERTING POST-TRAUMATIC STRESS DISORDER OR TRAUMATIC BRAIN INJURY.