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

Dedrick Fisher and shaken baby prosecutions

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

Patrick Clayborn, Pre-court-martial hearing held for Fort Rucker soldier, 11 February 2009.

So called shaken-baby cases can be difficult. The evidence of nexus between acts alleged and injury or death can be ambiguous and subject to interpretation, or in some cases overpowering.

There are several cases worth reading in this area, Warner, in particular is useful because the holdings of Warner are useful for any case in which the defense and prosecution need to have expert assistance. Warner was itself a shaken-baby case. In Warner the prosecution had obtained one of the best experts possible for itself and then tried to foist an unqualified "expert" on the defense. The bottom line from Warner is what I refer to as a rule of approximate parity in experts, in situations where the prosecution has experts. Of course this remains a troubling aspect of the trial counsel being an entry point and key to the defense access to witnesses in general, not just experts. See United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005). Lest the prosecution resort to United States v. Short, as justifying them having a really good expert and the defense not, the court in Warner points out that:

Rules of evidence or political expediency?

February 9, 2009 | The Law Office of Philip D. Cave

Colin Miller, Into The Dawn To Montana: Montana Moves Closer To Adopting Sex Crime Character Evidence Rules, 9 February 2009.

A reminder that rules of evidence are in many instances political responses, not reality.

Confrontation

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

Check out, Island Justice: Guam Supreme Court Opinion Reveals Important Hearsay & Confrontation Clause Principles, Professor Colin Miller, Evidence Prof Blog, 7 February 2009.

They discuss an interesting case of an assault victim. It was six days before police could interview her, and she was interviewed a second time after that. The police office was allowed to testify about her physical condition and what she said at each interview — statements which were not helpful to the accused, else why would we be talking about him. Quoting the Prof:

The court agreed with Jesus that Gadia was "unavailable" as that term is defined in Guam Rule of Evidence 804(a)(3)

Forensic reliability?

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

Solomon Moore, Science Found Wanting in Nation's Crime Labs, N.Y. Times, 4 February 2009.

John Eligon, New Efforts Focus on Exonerating Prisoners in Cases Without DNA Evidence, N.Y. Times, 7 February 2009.

Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.

Death is Different

February 6, 2009 | The Law Office of Philip D. Cave

C.A.A.F. has DNA on its conference agenda.

In a post-conviction access to DNA evidence case:

The district court found that Bradley had a constitutionally protected