Court-Martial Trial Practice BlogArticles Posted in Evidence
Hearsay.
The New York Times reports that the Obama administration is considering preserving the military commissions some form. Part of the motivation for that, it is said, is this: "Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies."
It is unfortunate that we have not yet drawn the right lessons from the Guantanamo-Military Commission experience. One of the notions held by the Bush administration people who set up the commissions was that judges, courts, lawmakers, etc., are naive in their treatment and distrust of hearsay evidence. Like first year law students (and many of their teachers blissfully unburdened by any on-the-ground experience in law enforcement or criminal justice), these "reformers" were bold and believed that any rational dummy knows that hearsay evidence is often worth quite a lot.
What our experience with the commissions should teach us is that hearsay evidence is often worth very little and that its use in adjudication presents serious problems. Any dummy who has just a bit of experience in investigation and litigation should know that. It is not easy to figure out how to sort hearsay wheat from hearsay chaff. But it is important to make the effort. Otherwise we will continue to have imprisonment for years on end on the word of the legendary Afghan goat herder resentful of his neighbor and eager for economic self-advancement.
Hypnotically refreshed testimony
We are all familiar with Rock v. Arkansas, 483 U.S. 44 (1987), in which a per se bar against hypnotically refreshed testimony of an accused was held unconstitutional. Prof. Colin Miller reports that the state of Illnois finds that a per se bar can be applied to witnesses other than the accused.
Trial Counsel argument
The Coast Guard has issued an opinion in United States v. McDonald, __ M.J. ___ (C.G. Ct. Crim. App. April 24, 2009). This opinion discusses why the standard trial counsel sentencing argument in drug pop cases is typically erroneous. I call it the typical absence of proof problem for trial counsel.
The standard for determining the appropriateness of an argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused. United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).
Appellant relies on United States v. Skidmore, 64 M.J. 655 (C. G. Ct. Crim. App. 2007) to support the conclusion that the argument at issue amounts to plain error. In Skidmore, this Court held that it was plain error for the trial court to hear evidence and argument on the fact that the accused was a boarding officer because that fact was not “directly related” to the single drug use offense charged in that case. Id. at 661 (citing United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F 2007)). Skidmore provides guidance to trial counsel [and defense counsel] presenting and arguing [or objecting to] evidence in aggravation in drug cases,
Injury in sexual assault cases.
I noticed an article on the Navy JAG NKO site today that should be treated with some caution by defense counsel. It is entitled Practice Tip: Presenting medical evidence in a sexual assault case.
I have no problem with the beginning and essential premise of the article – the absence of genital trauma in a rape case is not evidence that no rape occurred (sorry for the double negative). But the reverse is also true! The research is clear that rape cases happen and no observable (including by colposcopy viewing or Toluidine dye application) trauma occurs. The article then goes on to discuss how trial counsel should try to educate members about this. Up to this point I don’t disagree, however this is the language that should cause defense counsel caution, and should launch a Houser motion.
United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a military judge should use to determine the admissibility of expert testimony. In United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999), the Court of Appeals for the Armed Forces makes specific the application of the Daubert factors under a Houser analysis.
Rules of completeness
Mil. R. Evid. 106, is a rule of completeness and applies to both the prosecution and the defense.
Rule 106. Remainder of or related writings or recorded statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Federal Evidence blog has reported a Second Circuit opinion dealing with Fed. R. Evid. 106 (the same rule as the military rule).
Right to present a defense
Here’s an interesting post by Prof. Miller.
Colin Miller, Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal, 13 April 2009.
Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:
Post-trial R.C.M. 917 motions
A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).
Rule 29. Motion for a Judgment of Acquittal
(c) After Jury Verdict or Discharge.
(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.
We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.
Hearsay within hearsay
Here is a post from Prof. Colin Miller reminding us that hearsay within hearsay is still a potential objection to the contents of business records sought to be admitted under a Mil. R. Evid. 803 exception.
Prof. Colin Miller, Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted, EvidenceProf blog, 28 March 2009.
The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 08- 50130 (9th Cir. March 27, 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.
Are military breath tests reliable?
According to the MJ ruling in a case I just completed in Korea, the Intoxilyzer SD2 is reliable if administered in accordance with its instruction manual and the applicable AR. However, at Camp Casey, Korea, they are not admissible. That is because the MP's do not conduct proper calibrations in accordance with the test instructions and AR on how Army breath tests are to be conducted. For the military judge this failure constitutes a major departure from the regulation and not a minor failure.
Note: this is a Joint regulation applicable to all of the Services:
AR 190-5; OPNAVINST 11200.5; MCO 5110.1; AFI 31-218(I)