Evidence Category Archives — Page 23 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

The inside baseball drug

March 2, 2009 | The Law Office of Philip D. Cave

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.

February 27, 2009 | The Law Office of Philip D. Cave

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

February 24, 2009 | The Law Office of Philip D. Cave

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

February 24, 2009 | The Law Office of Philip D. Cave

The oral argument transcript is now available in Rivera v. Illinois.

Present sense impression.

February 23, 2009 | The Law Office of Philip D. Cave

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.

February 23, 2009 | The Law Office of Philip D. Cave

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.

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

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.

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

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.

February 20, 2009 | The Law Office of Philip D. Cave

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”?

Modus Operandi evidence.

February 13, 2009 | The Law Office of Philip D. Cave

Prof. Peter Tillers, How Distinctive Must a Modus Operandi Be to Serve as a "Signature"? Tillers on Evidence and Inference, 13 February 2009.

Military Rule of Evidence 404(b), United States v. Huddleston, 485 U.S. 681 (1988), are at the heart of Prof. Tillers' critique. In his view the rules requiring more than just happenstance are being corroded as to become meaningless.

The problem with this tendency (if you think it is a problem) is that if continued, it leads to the annihilation of all rules of evidence whose reason for being rests on their capacity to increase the accuracy of inference because of the accuracy of the generalizations those rules harbor about nature and humanity.