Evidence Category Archives — Page 17 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Wuterich an evidence professor’s view.

September 2, 2009 | The Law Office of Philip D. Cave

Here is a commentary from Prof. Colin Miller on his blog I love to read about Wuterich. He begins:

All but two states have some type of reporter's privilege. Similarly, most federal courts have recognized some type of reporter's privilege as well. But what about military courts? Well, to this point, they haven't recognized a reporter's privilege, and that did not change with the recent opinion of the United States Navy-Marine Corps of Criminal Appeals in United States v. Wuterich, 2009 WL 2730890 (N.M.Ct.Crim.App. 2009).

Prof. Miller concludes:

Coerced confessions case.

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

ACCA has issued a Memorandum Opinion in United States v. Markis, ARMY 20070580 (A. Ct. Crim. App. 18 August 2009).

Appellant had given three pre-trial admissions to CID. The defense sought to exclude the confessions as being coerced. The military judge permitted the defense to present expert testimony on coerced confessions, specifically it appears how the Reid Technique may lead to coerced confessions. However, the military judge refused to allow the defense to ask hypothetical questions unless the defense first asked for an Article 39(a), UCMJ, session to get a ruling. It appears that the defense did not seek to ask a hypothetical and did not ask for an Article 39(a) once the prosecution witnesses had testified and they had laid a sufficient foundation to get to the point where a hypothetical might be offered.

The opinion has a nice little review of what you must do, by way of proffer, to preserve an objection.

Inaudible audio

August 12, 2009 | The Law Office of Philip D. Cave

Here is an interesting case from FederalEvidence blog on how the 8th Circuit deals with the scratchy issue of a poor audio recording.

Factors For Admitting “Partially Inaudible” Recordings

Eighth Circuit rules that partially inaudible recordings with a confidential informant may be admitted when the trial court finds that they “provide [the] jury with the ‘gist’ of the conversations” so that any inaudible portions do not “render” the tapes untrustworthy as a whole, in United States v. Trogdon, F.3d (8th Cir. Aug 6, 2009) (No. 08-2858).

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.

Use Of Evidence In Electronic Format During Deliberations

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

Here is an interesting piece about Members having certain types of electronic evidence in the deliberation room.

A few federal courts provide guidance on the use of electronic evidence during jury deliberations, including the Ninth Circuit Model Jury Instructions and the U.S. District Court for the District of New Hampshire.

/tip Federal Evidence blog.

Fingerprint evidence and testimony

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

Tenth Circuit Joins Consensus On Admissibility Of Fingerprint Evidence

In conspiracy to possess marijuana and illegal firearm possession prosecution, expert fingerprint testimony identifying the defendant’s thumb print on guns and ammunition was admissible under FRE 702 and Daubert even though the defendant raised “questions regarding whether fingerprint analysis can be considered truly scientific in an intellectual, abstract sense”; circuit extensively explored the current argument regarding admissibility of fingerprint evidence under the ACE-V (analysis, comparison, evaluation, and verification) process for determining matches applying the Daubert admissibility factors, in United States v. Baines, __ F.3d __ (10th Cir. July 20, 2009) (No. 08-2098).

FederalEvidenceBlog also accounts for the other circuits on how they rule on such issues.

Careful who you speak to and what you say.

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

I routinely counsel clients not to talk with anyone regarding their case. Here is a new Navy case which is a reminder.

There is no evidence to suggest the appellant was engaged in plea discussions or negotiations with LtCol C at the time he repeated the advice from his father-in-law. The record reflects the appellant spontaneously mentioned the advice he received from his father-in-law to LtCol C, a friend and mentor. As in United States v. Watkins, 34 M.J. 344, 348 (C.M.A. 992), LtCol C was acting neither as nor on behalf of the CA or the staff judge advocate, nor was he authorized to engage in plea negotiations with the appellant. The statement was voluntarily made and its admission was not an abuse of discretion.

United States v. Toschiaddi, No. NMCCA 200800044, 2009 CCA LEXIS 246, at *5–6 (N-M. C . Ct. Crim. App. 16 July 2009).

Self-defense – again.

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

I have previously commented about evidence of the victim’s character for violence and specific incidents. To refresh – there are several ways the assault victim’s character for violent behavior can become relevant and admissible in an assault case.

a. The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b. The prosecution puts on opinion testimony of the victim’s character for peacefulness.

Corroboration

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

An item sometimes missed or perhaps not always explored in cases with a confession is the question of corroboration. Here is an Army case that discusses the issue quite well. The case recognizes that the amount of corroboration is small so it’s easy to gloss over the corroboration issue. Here is the value of the admonition to check the elements, do whatever “proof” chart you use, and take a moment to consider if the government can meet their burden to get past a motion. Also remember, that so long as made in good faith, such a motion becomes a discovery tool. A motion for a Bill of Particulars is not to be used purely for discovery, however, such a motion – again so long as made in good faith — in part gives some discovery. Anyway, back to Rosas.

United States v. Rosas, No. ARMY 20060075 (A. Ct. Crim. App. 14 July 2009).

Appellant was the leader of a conspiracy involving four other United States Soldiers, several U.S. citizens, and one or more Colombian co-conspirators. His offenses occurred over the course of a two-year period during which appellant was a mission supervisor on electronic surveillance flights over Colombia.

Fingerprint examination – expert testimony – admissibility.

July 23, 2009 | The Law Office of Philip D. Cave

We have jurisdiction under 28 U.S.C. § 1291. Concluding that the district court did not abuse its discretion in allowing the government to present expert evidence that a thumb print found on some of the contraband recovered by the authorities was a match to Baines’ print, we affirm the judgment of the district court.

United States v. Baines, No. 08-2098, 2009 U.S. App. LEXIS 15945, at *1–2 (10th Cir. Jul. 20, 2009).