Evidence Category Archives — Page 18 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Consciousness of guilt

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

Seventh Circuit determines that admission of an audiotape of robbery defendant beating and threatening the life of a potential witness was a “close[ ] call” but that its probative value in suggesting defendant’s guilty conscience “cannot be genuinely disputed” and that this evidence was not unfairly prejudicial despite the fact that one could hear the sounds of the beatings on the recording, in United States v. Calabrese, F.3d (7th Cir. July 14, 2009) (No. 08-2861).

/tip FederalEvidenceBlog.

Prosecution “overview” witnesses.

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

I have commented on this issue previously: More on groundwork. Now the 1st Circuit seems to want to get tougher with prosecutors.

First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony.

After prior admonitions, First Circuit warns prosecutor that failure to avoid the problems in using an “overview” witness may result in possible sanctions or disciplinary action, in United States v. Flores-De-Jesus, _ F.3d _ (1st Cir. June 18, 2009) (No. 06-267, 06-2670, 06-2671) (Torruella, Lipez, and DiClerico (DJ)).

/tip: FederalEvidenceBlog.

Witness’s legal conclusions.

July 10, 2009 | The Law Office of Philip D. Cave

This case is relevant to both the prosecution and the defense. And not just on cross-examination, but also on direct.

On defense claim that the defendant did not affirmatively consent but only “acquiesced” to the search, defense counsel’s use of the word “acquiesced” in cross-examining the officer was inadmissible under FRE 701 for attempting to force the officer to adopt a legal conclusion, in United States v. Canipe, __ F.3d __ (6th Cir. June 30, 2009) (No. 08-5534).

/tip FederalEvidenceBlog.

Character of a victim and self-defense.

July 10, 2009 | The Law Office of Philip D. Cave

Prof. Colin Miller has this very useful post on the character of a "victim" when a defense of self-defense is raised.

The Character Of The Matter: Court Of Appeals Of Arizona Finds That Victim's Violent Character Is Not An Essential Element Of A Self Defense Claim.

In Fish, Harold Arthur Fish appealed from his conviction for second degree murder, claiming, inter alia,

M-Diaz and urinalysis cases

June 30, 2009 | The Law Office of Philip D. Cave

I’ve commented earlier that I do not see Melendez-Diaz altering the drug urinalysis case in terms of laboratory evidence. Here is some additional thought which I think supports my conclusion.

Q2: Peer review, forensic experts.

One question that came up during oral argument, and remains after the ruling, is the application of the ruling to peer review witnesses. It is common for a supervisor or peer to review a forensic examination, as part of a quality control process. The reviewer often does not conduct the specific analysis or testing.

Next Crawford case.

June 30, 2009 | The Law Office of Philip D. Cave

Here is the QP is Briscoe, a VA case which addresses one of the points raised in Melendez-Diaz. I have done this in drug urinalysis cases – asked for production of the lab witnesses as defense witnesses – and been refused.

If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

Professor Friedman is counsel of record. He was amicus in M-Diaz and it looks like the Supreme Court in M-Diaz accepted his general approach to the issues in M-Diaz. If the Sixth Amendment means anything, then the witness has to be produced and saying that the defense can call the witnesses themselves is not the same as confrontation. It seems to me that the Briscoe issue ought to be resolved in the same manner as for a witness. The prosecution can’t offer witness statements and then retreat to a rule that says the defense has the right to supoena the witnesses for cross-examination. So why should the result be the same with forensic reports.

Juvenile convictions

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

Are juvenile convictions subject to discovery and potential use at trial? — Yes.

Mil. R. Evid. 609(d): Evidence of juvenile adjudications is generally not admissible under this rule. The military judge, however, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the military judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Fed. R. Evid. 609(d): Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Based on a fair reading of the Rule the answer is yes, if you can make a connection to the case.

Child abuse allegations: Can you make a credible argument that the child is making a false allegation of physical or sexual abuse. And we know that happens. If you can and the child and you believe the child has a juvenile conviction for a crime involving moral turpitude then the information should be discoverable and useable in cross-examination. Also, I would argue the prosecution has a self-executing [n.1] constitutional duty to turn that information over the to the defense in discovery.

Sexual assault allegations: Do you have a 18 year old enlisted person allegation a sexual assault, alleging sexual harassment, etc. Here again my view is that a juvenile conviction for a crime of moral turpitude is discoverable and admissible. The reason is the age of the “victim” at the time of the complaint and testimony.

Drug offenses: Do you have hee 18 year old narc or alleged co-accused against other alleged druggies. There’s a motive to lie and shift blame. Here again I think the closeness in time and the issue of credibility are the factors and reasons why juvenile convictions for crimes of moral turpitude are discoverable and useable. In drug cases another reason would be to show the witness lied on their enlistment contract or SF86.

Any offense: If there is an indication of a juvenile conviction then there is the possibility of a lie at the time of enlistment or filling out the SF 86. Here it’s not the facts of the conviction, it’s the existence of the conviction to show the witness lied under oath at the time of enlistment or completing the SF86 by failing to disclose or some other misrepresentation.

These are four examples, I’m sure there are more.

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n.1 I have and continue to argue that Brady, Kyles, and other cases create a self-executing duty on the prosecution to seek out and produce certain types of information. Contrary to arguments of some trial counsel, the defense does not need to make a discovery request for this information and the prosecution is required to seek it out.

Sniffing dogs.

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

Dog sniffs of the exterior of a vehicle are not searches under the Fourth Amendment. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007). "Such a dog sniff may be the product of an unconstitutional seizure, however, if the traffic stop is unreasonably prolonged before the dog is employed." United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006), [*6] cert. denied, 549 U.S. 1118 (2007) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Such a situation might typically occur when an officer unreasonably lengthens a roadside detention until another officer can bring a drug dog to the scene. . . . Having said that, the dog sniff was nonetheless impermissible if it was the result of an unconstitutionally prolonged traffic stop. See Peralez, 526 F.3d at 1119; Alexander, 448 F.3d at 1016.

United States v. Suitt, No. 08-2688, 2009 U.S. App. LEXIS 13769, at *5–6 (8th Cir. Jun. 25, 2009).

So, if you are stopped at the gate to the base and the MP and dog walk up to your car to sniff, the dog to do the outside, the MP to do the inside, then that should be OK.

More commentary on Melendez-Diaz

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

Professor Colin Miller, Chicken Little Or Canary In The Coal Mine?: Supreme Court Finally Issues Opinion In Melendez-Diaz, Finding Certificates Of State Laboratory Analysts To Be "Testimonial," 25 June 2009.

Analysis: Law need not bow to chemistry, SCOTUSBlog.

Melendez-Diaz – Prof. Friedman

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

Here is a link to Professor Friedman’s initial thoughts on this case.

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

As previously stated, I think CAAF will stick with Magyari, and will likely find some language in the majority opinion. However, my sense is that the court will do so for the wrong reasons stated within the dissent by Justice Kennedy. Here is Professor Friedman’s comment on that – the political reasoning.