Articles Posted in Evidence

There's an interesting case going on in (southern California of course) where the defense is seeking to offer.

Defense attorneys are for the first time submitting a controversial neurological lie-detection test as evidence in U.S. court.digg_url ="http://blog.wired.com/wiredscience/2009/03/noliemri.html";

In an upcoming juvenile-sex-abuse case in San Diego, the defense is

Federal Evidence Review has put up a very good list of Supreme Court cases that impact evidence issues in a case.  The list "includes constitutional, statutory, and Federal Rules of Evidence – based evidence-related cases."  The list is by its nature discretionary and subject to change, but a useful reminder.  Who knows, the Supreme Court may eventually issue an opinion in Melendez-Diaz.

Every so often the defense wants a co-accused to testify because they have something beneficial to say and they have already said it at the Article 32, UCMJ, hearing.  As we know, the prosecution almost never willingly immunizes the witness, and judges don't always force the issue.  (Odd how that happens to the defense, but never the prosecution.)

Anyway, check out, Federal Evidence Review's, item, Former grand jury testimony of cooperating witness should have been presented to the jury under FRE 804(b)(1); Ninth Circuit adopts broad application of “similar motive” requirement, in United States v. McFall, _ F.3d _ (9th Cir. March 9, 2009) (No. 07-10034).

This is a case where the alleged co-accused's testified to Brady material (my construction of this) at the grand jury hearings in the case.  Of course the prosecution objected to having the grand jury testimony of the witnesses played at the accused's trial.  The witnesses had invoked their Fifth Amendment privilege at trial.  The government wasn't interested in having the witnesses evidence before the jury so they had not called the witnesses themselves, even though the witnesses had agreed to cooperate with the prosecution.

Rule 1102. Amendments.  Amendments to the Federal Rules of Evidence shall apply to the Military Rules of Evidence 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

On September 19, 2008, Fed. R. Evid. 502, a new evidence rule concerning the attorney-client privilege and work-product doctrine, was enacted. See Pub. L. No. 110-322, 122 Stat. 3537.

Pending Rule Amendment: Fed. R. Evid. 804(b)(3) (Declarations Against Interest)

There may be a legitimate question that the Intoxlyzer 5000 does discriminate against African-Americans.  This test is in use throughout much of DoD.  It seems at least worth researching and filing a Houser motion in regard to this technology if your client is African-American, and perhaps if the client is a woman.  See United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993), which sets out six factors a judge should use to determine the admissibility of expert testimony.  In my view, Houser can be used also to challenge the actual “science” underlying testimony for something such as a breath-test machine.  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.

Colin Miller, KKK In A Box?: Connecticut To Replace Controversial Intoxilyzer 5000 With Equally Controversial Alcotest 7110 MKIII-C, EvidenceProf Blog, 15 February 2009.

Every now and again a client wants to object to giving a DNA sample once at the Brig.  Objections based on religion, the First Amendment, the Fourth Amendment, and the Fifth Amendment, won't work.

This issue of journalists and privilege — and considerations of a Shield Law –  is not new to military practice.

A proposed privilege is circulating around Congress and other high offices.

Here is a piece by Prof. Colin Miller of Evidence Prof Blog, writing this time for the Yale Law Journal's Pocket Part — A Public Privilege.