Articles Posted in Evidence

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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.

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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.

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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).

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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’.

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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.

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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.

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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.”

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United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009).  Let’s get the nub of the case from CAAFLog’s summary.

Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a ‘simple disorder,’ under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an ‘offense necessarily included’ under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court’s previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

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Here is a link to Prof. Colin Miller’s site.

The Areas Of My Expertise: Alabama Federal Court Allows Expert Eyewitness Testimony Despite Eleventh Circuit Precedent.

Professor Miller discusses an 11th Circuit decision allowing expert testimony on the unreliability of eyewitness identifications.  The court allowed testimony about problems with identifications, but did not allow testimony that the particular identifications in the case were erroneous.

Seems like it’s explaining things to the jury, much like the prosecution gets to introduce “syndrome” like evidence.

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