Court-Martial Trial Practice BlogProf. Colin Miller has published an article about Fed. (Mil.) R. Evid. 606. Prof. Miller argues that, "Rule 606(b) to preclude
allegations of juror bias violate criminal defendants' right to present
a defense."
Articles Posted in Evidence
The inside baseball drug
For those for who baseball is a drug, here is a good piece from Federal Evidence Review. Not only is this a baseball story, but it also has some teaching points about the law of evidence in drug prosecution cases.
On Eve Of The Barry Bonds Perjury Trial, Government Appeals Evidence Ruling, FER, 2 March 2009.
Trial court concludes key evidence is inadmissible as unauthenticated or as hearsay, in United States v. Bonds, _ F.Supp.2d _ (NDCA Feb. 19, 2009) (No. CR 07-00732 SI).
Law enforcement lay and expert testimony, potential for confusion.
United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006).
Federal Evidence Review draws attention to this case on the issue of law enforcement testimony. The case involved drugs. In military prosecutions we have similar situations where law enforcement testifies about drugs.
The circuit concluded that plain error resulted: “We conclude that permitting police officers to testify as experts in their own investigations and give opinion testimony on the significance of evidence they have collected, absent any cautionary instruction, threatens the fairness, integrity, and public reputation of judicial proceedings, regardless of whether the defendant is actually innocent.” Lopez-Medina, 461 F.3d at __.
3rd party hearsay in public documents
In a cautionary tale, Prof. Colin Miller, If You Were In The Public Eye: Kentucky Court Finds That Third Party Statements Were Properly Excluded From A Public Report, EvidenceProf Blog, 24 February 2009.
Professor Miller draws attention to a Kentucky case which has relevance to Mil. R. Evid. 803(4), the public records exception, and potentially Mil. R. Evid. 803(6), (8).
When you have hearsay within hearsay offered as an exception to hearsay, that "evidence" must be independently admissible. Thus a police report containing a witness's description of an event is still hearsay and must meet the hearsay rule. If the third party statements aren't independently admissible, then they must be redacted.
Rivera v. Illinois
The oral argument transcript is now available in Rivera v. Illinois.
Present sense impression.
Prof. Colin Miller, The Sense Of The Past: Third Circuit Corrects Worst Present Sense Impression Ruling I Have Ever Seen, 23 February 2009.
United States v Green, 2009 WL 385423 (3rd Cir. 2009).
over Green's vigorous objection, the Government was permitted to
Attorney-client privilege.
Attorney-Client Privilege Protection Act of 2009 Is Introduced In the Senate (S. 445).
Federal Evidence Review notes that Sen. Specter has re-introduced a bill that protects attorney-client privileged and work-product privileged information from use by prosecutors. This may, or may not, assist with the current issue about military email "access" issues.
Business records and certifications.
Can Self-Authenticated, Certified Business Records Violate The Confrontation Clause? Federal Evidence Review, 30 July 2008.
Pointing to United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. 2008), the reviewers posit that Fed. R. Evid. 902 (Mil. R. Evid.) leads to "testimony" in violation of Crawford v. Washington, 541 U.S. 36 (2004).
Potential Mil. R. Evid. 804 change.
Here, courtesy of Federal Evidence Review, is the proposed change to Fed. R. Evid. 804(b)(3). Should this become the federal rule, it will become the military Rule 18 months later, absent affirmative action to the contrary. It's my understanding that the public comment period has closed.
Whaa, whaa, it’s just so hard.
United States v. Fisher, ARMY 20080012 (A.Ct.Crim.App. 20 February 2009). This case was submitted on its merits. After a review, the court specified two issues, both of relevance to trial advocates and military judges. After finding error, the court found no relief warranted because the error was not prejudicial. We have addressed something similar in the past. See, Trial Counsel Argument – A Judge's Duty.
Specified Issues:I.
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE ALLOWED TESTIMONY FROM SFC ESSINGER AND ARGUMENT BY TRIAL COUNSEL, DURING AGGRAVATION AND SENTENCING, THAT: (1) THE COMMAND WAS PERCEIVED TO BE “SOFT ON CRIME” DUE TO THE LENGTH OF TIME IT TOOK TO BRING THE CASE TO TRIAL, AND; (2) THE ACCUSED SHOULD BE PUNISHED FOR THE MAN-HOURS REQUIRED “DEALING WITH LEGAL PAPERWORK, COUNSELINGS, AND TAKING THE ACCUSED TO AND FROM APPOINTMENTS”?