Court-Martial Trial Practice BlogArticles Posted in Evidence
Melendez-Diaz – Prof. Friedman
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.
More Melendez-Diaz
I particularly like this part:
Forensic evidence is not uniquely immune fromthe risk of manipulation. According to a recent study conducted under the auspices of the National Academy ofSciences, “[t]he majority of [laboratories producing foren-sic evidence] are administered by law enforcement agen-cies, such as police departments, where the laboratoryadministrator reports to the head of the agency.” National Research Council of the National Academies, Strengthen-ing Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter NationalAcademy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particularquestion related to the issues of a particular case, theysometimes face pressure to sacrifice appropriate method-ology for the sake of expediency.” Id., at S–17.
We have had this in all of the military labs over time – Drug Labs, USACIL, DCFL. Military labs have not been immune to error and/or manipulation.
Alert – Melendez-Diaz decided!
Melendez-Diaz v. Massachusetts
This is the link to the Supreme Court Decision in M-D.
Here’s a link to the arguments before the court.
Expert’s expertise.
Here is the lead in for an piece on federalevidence.com blog:
In medical malpractice case, trial court’s exclusion of defense expert as unqualified was not harmless error; the defense expert’s opinion that the plaintiff’s expert’s conclusion was not supported by the medical literature plaintiff cited did not require the defense expert to have as much specialized “training and experience” as the opposing expert whom he critiqued, in Huss v. Gayden, __ F.3d __ (5th Cir. June 10, 2009) (No. 04-60962)
The lack of precision in the Daubert test for the admission of expert witness testimony serves as a source of its remarkable flexibility and also as a source of frustration to practitioners. It is clear that under Daubert, an expert witness need not be a star in his or her field to qualify. On the other hand, minimal preparation or training frequently is insufficient for expert qualification. The Fifth Circuit recently probed the question of just when an expert is “expert enough” in a medical malpractice case. The result reached by the circuit demonstrates that expertise is a matter that must be assessed within the context of the evidence presented and arguments that will be made at trial.
More on groundwork.
Earlier I commented on prosecutors introducing inadmissible irrelevant evidence to set the stage or lay the groundwork for an investigation and prosecution (here). Here’s another case, again from the 1st Circuit.
This case requires us to assess the propriety of the government’s use of a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an "overview" of the prosecution’s case. While we have condemned aspects of this practice before, most notably in United States v. Casas, 356 F.3d 104, 117 (1st Cir. 2004), we must regrettably revisit the overview witness issue in some detail because of the abuse of that practice in this case and others.
United States v. Flores-De-Jesus, No. Nos. 06-2670, 06-2671, 06-2672, 2009 U.S. App. LEXIS 13093, at *1 (1st Cir. Jun. 18, 2009).
Just laying the groundwork your honor!
First Circuit focuses on relevance tests to assess the admission of out-of-court statements offered for a non-hearsay purpose; ultimately the error was harmless, in United States v. Benitez-Avila, __ F.3d __ (1st Cir. June 9, 2009) (No. 08-1463).
Trial counsel often want to call the investigator to lay the groundwork on how the investigation was started, how it progressed, and how it lead to the accused.
There is a basic rule that evidence that is hearsay for one purpose may still be admissible for another non-hearsay purpose. However, the non-hearsay purpose must also be closely examined for relevance and Mil. R. Evid. 403 purposes. In Benitez-Avila the hearsay nature of the admitted testimony was easily dealt with under Fed. R. Evid. 801. The court then went on to find error under Fed. R. Evid. 403.
The proposition that hearsay does not include statements showing context or background and not received for the truth of what they said should not be understood to mean that any kind of statement, no matter how prejudicial, may be introduced if it shows what might loosely be described as context or background. First, the aspects of ‘context’ or ‘background’ for which the evidence is offered must be relevant. And even if it is relevant its probative value in relation to the nonhearsay purpose must not be ‘substantially outweighed by the danger of unfair prejudice’.
The best evidence they can testify about.
The Best Of Everything: Fourth Circuit Erroneously Finds That Best Evidence Rule Doesn’t Apply In Firearms Appeal
Federal Rule of Evidence 1002, the Best Evidence or Original Document Rule, indicates that
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
As I tell my Evidence students, this Rule is oft misunderstood, not only by law students, but also by lawyers and even judges. The recent opinion of the Fourth Circuit in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), is a good example of judges completely misunderstanding the Best Evidence Rule.
Pushing the envelope?
What Are Your Intentions?: Sixth Circuit Finds No Plain Error In DEA Agents Drug Quantity Testimony
Federal Rule of Evidence 704(b) provides that
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.
Consciousness
In prosecution for first-degree murder and for using a firearm in the commission of a crime of violence, testimony that defendant threatened two percipient witnesses at the scene of the crime were admissible under FRE 404(b) to show consciousness of guilt, in United States v. Begay, _ F.3d _ (9th Cir. June 1, 2009) (No. 07-10487)
Other act evidence under FRE 404(b) is admissible for other than propensity purposes, such as for showing a defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This list is not exhaustive and occasionally other act evidence is admissible for other purposes, such as to show a defendant’s consciousness of guilt on the charged crime (emphasis added).
FederalEvidence blog.
Don’t forget that in the right case the defense should be introducing, arguing for, and asking for instructions on consciousness of innocence. As of yet no military or federal court accepts this theory when it comes to instructions. However, there are plenty of state court rulings on “consciousness of innocence.”