Evidence Category Archives — Page 20 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

A significant holding

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

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.

Experts on eyewitness testimony

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

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.

Post-vaction Syndrome

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

Oh well, back from vacation. Lot’s to catch up on.

Here is an interesting article:

Anthony E. Giardino, COMBAT VETERANS, MENTAL HEALTH ISSUES, AND THE DEATH PENALTY: ADDRESSING THE IMPACT OF POSTTRAUMATIC STRESS DISORDER AND TRAUMATIC BRAIN INJURY, 77 Fordham L. Rev. 2955 (2009).

More on Breath Tests

June 3, 2009 | The Law Office of Philip D. Cave

I’ve already commented on breath tests.

Are military breath tests reliable?

Is the Intoxilyzer 5000 racially and genetically biased?

Here is a new case and continuing discussion which potentially excludes evidence of the Intoxilyzer 5000, a device found to be used frequently at military bases. The issue is actually one of discovery.

Supreme Court Of Minnesota Throws Intoxilyzer 5000 In The Drunk Tank Based Upon Non-Production Of Source Code, Prof. Colin Miller, 3 June 2009.

I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices.

Prosecution failure to provide credibility related discovery on their witnesses.

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

A recent Ninth Circuit case highlights the importance of disclosing impeachment evidence and the consequences of failing to do so. The prosecutor requested a criminal history check on a key government witness. The prosecutor indicated he was unaware of the criminal history which was not disclosed to the defense. The defendant was convicted and subsequently the criminal history evidence came to light.

The prosecution’s failure to disclose to the defendant the criminal history of a key witness violated the defendant’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963); the criminal convictions were admissible under FRE 609 and the prior acts of theft or dishonesty were admissible under FRE 608(b), in United States v. Price, F.3d (9th Cir. May 21, 2009) (Nos. 05-30323, 06-30157).

Getting this type of discovery is a frequent problem in military cases. You will notice that Price does not cite to Henthorn. It is unlikely you will find a reference in military cases to Henthorn as a legal standard in the military for background checks on prosecution witnesses. Military discovery is broader than in the civilian community, and you should take the position that Henthorn is more restrictive than contemplated in military practice. An additional argument is that such background checks do not require a discovery request; the duty on the prosecutor is a self-executing one that must be personally done in all cases.

"the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police."

Kyles v. Whitley, 514 U.S. 419 (1995).

Excluding taped conversations

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

United States v. Crabtree, No. 08-4411, 2009 U.S. App. LEXIS 10720(4th Cir. May 19, 2009).

In a published opinion the Fourth Circuit sides with the majority of federal circuit courts of appeal that there is no government “clean hands” exception to the receipt into evidence of unlawfully taped telephone calls.

Daniel Crabtree was sentenced to twenty-four months imprisonment for violating the terms of his supervised release. The government established some of the violations by introducing into evidence certain audio tapes that were made by Crabtree’s girlfriend in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510 – 2522 (West 2000 & Supp. 2008). We agree with Crabtree that although the government was not involved in the interception of Crabtree’s conversations, Title III nonetheless prohibited the government from introducing evidence of the intercepted conversations. We therefore vacate the district court’s judgment and remand for further proceedings.

Comment on Yammine

May 21, 2009 | The Law Office of Philip D. Cave

Here is Prof. Colin Miller’s comment on United States v. Yammine, decided by the NMCCA recently.

Does Child Pornography=Child Molestation?: Military Court Finds Child Pornography Evidence Was Properly Admitted As Character Evidence

Forensics rants

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

Here’s a new law review article to go along with my rants about how prosecution expert and forensic evidence can be biased, it’s difficult to deal with, and the system allows the problem.

Volume 95, Issue 1
Brandon L. Garrett and Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) View PDF

This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants—82 cases or 60 percent—forensic analysts called by the prosecution provided invalid testimony at trial—that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by seventy-two forensic analysts called by the prosecution and employed by fifty-two laboratories, practices, or hospitals from twenty-five states. Unfortunately, the adversary system largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief.

Techno-junkies

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

Been a while since I’ve posted something related to technology and this century. (I should note a red book sighting the other day at NLSO WNY.) Here is an interesting article. Of course those of us with the offending L1 GPS systems are quite aware of running into brick walls or cul-de-sacs due to inaccuracies. But what will the courts do.

Recalculating, Take 5: Is GPS Evidence Too Unreliable To Be Admitted Into Evidence? Professor Colin Miller posts about a number of items about reliability.

In the article, GPS Evidence Too Unreliable For Legal Purposes, Thomas Claburn provocatively opens by noting:

CAAF opinion – Campos

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

CAAF has issued an opinion in United States v. Campos, __ M.J. ____ (C.A.A.F. 2009). The court was unanimous, although Judge Baker filed a separate concurring opinion.

This is an opinion that essentially discusses the inadmissible evidence thrust down an accused’s throat through a stipulation as part of a pretrial agreement. Basically, if you stipulate, even to inadmissible unreliable evidence you are likely stuck on a waiver theory. Although it does appear in this case that there was no consent to admissibility in the stipulation, just what the testimony would be. So the accused could have objected at trial. But CAAF found a knowing waiver of an objection.

Interestingly the concurring opinion addresses the most troubling issue in the case. The stipulated testimony of an expert, who’d not evaluated the accused, included a sentence recommendation which is verboten under United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989). Judge Baker resolved his qualms on the legal fiction that the sentence and the recommended sentence must have been serendipitous, because judge’s are presumed to know and apply the law correctly.