False memories are a problem, especially in criminal trials. False memories can be created intentionally or through poor interview techniques (which I consider sort-of-intentional), and unintentionally because that is how the human brain can work. To quote Prof. Loftus:
We all have memories that are malleable and susceptible to being contaminated or supplemented in some way.
Prof. Elizabeth Loftus has been a leading investigator in the phenomena of false memory.
I have posted – perhaps ad nauseum – about objecting to context setting testimony of law enforcement witnesses: it allows the prosecution to smuggle in all kinds of hearsay and objectionable information, designed to affect the members.
The typical answer to this skunk thrown in the “jury box” is not to ask the members not to smell it, but to them not to smell it by way of a curative instruction. I’ve also – again ad nauseum – commented that so-called curative instructions are not likely effective.
So, the 6th has addressed the issue in United States v. Nelson. Like the errors of context information there is, to quote federalevidence.com, an avoidable problem.
You will remember the National Academy of Sciences on report on forensic sciences that caused a – temporary – uproar.
The Texas Star-Telegram reports on 11 August 2013:
Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.
Client: It wasn’t me. I didn’t (send that raunchy email) (I didn’t download that porn).
Atty: But look, they’ve got all this forensic data showing it came from your Army account while you were on line.
Client: It wasn’t me.
The politicians made issue of several military sexual assault program personnel who got in trouble. They crucified them.
Now here is another one who apparently is pretty much found to be a less serious case than postured. Little will be heard from the policians about this. But we on the defense side know that incidents like this do happen where a spouse is trying to leverage the process in a divorce/child custody proceeding. There’s certainly research that shows a contentious divorce or child custody matter is ripe for false allegations of sexual assault. Not that the politicians care.
A former Fort Campbell sexual assault prevention officer has been cleared of an aggravated stalking charge brought against him by his ex-wife in May — but he says his reputation and career have been ruined.
We hear a lot about the sufficiency of OSI, NCIS, CID investigations these days because of the sexual assault cases. Generally the assumption is that the failure to investigate aids the accused.
I disagree that it always aids the accused. There are many times the failure is in discovering helpful evidence. Recently (thank you) had an IO point that out.
So, here is a NY civilian IAC case that highlights. Sadly, it is an IAC case. But where were the police and where were the prosecutors.
Add in that military personnel are trained to obey.
The U.S. Supreme Court has ruled that police officers can briefly detain and search a person if they have a reasonable, articulable suspicion that he or she is committing, has committed, or is about to commit a crime. But cops need no such reasonable, articulable suspicions to engage people in consensual encounters: interactions that a reasonable person would feel free to decline or terminate at any time. Ordinary people are free to stop and talk to strangers, the thinking goes. Why should police officers be denied the same privilege?
And yet, as I’ve written before, a consensual police encounter is often anything but. Cops have guns, and handcuffs, and the power to arrest you or make your life difficult if you are rude or uncooperative. If a cop asks for a moment of our time, most of us will automatically give it, even if we know that we technically have the right to refuse.
Independent
I found this interesting item on SCOTUSBlog.
If one goes to the “Frequently Asked Questions” page of the Supreme Court website, there is this question: “Where can I find the papers of the Justices?” Indeed. And here is the answer tendered: “The Biographical Directory of Federal Judges, maintained by the Federal Judicial Center, provides location information for the Justices’ papers. Search by the name of the Justice and then click on the link to ‘Research Collections’ to see where the papers are available. Many collections of papers are located at the Library of Congress and at academic and research institutions throughout the country. Depending upon the institution, some material may be available online.”
What is the status of an accused being forced to divulge passwords on computers suspected of having contraband.
As an update in a recent case in which the government obtained an order compelling in individual to provide access to decrypted information on seized hard drives, In the Matter of The Decryption of a Seized Data Storage System (EDWI May 21, 2013) (No. 13-M-449), the government reported that it was able to decrypt some but not all of the data which has been used in support of an arrest warrant in the case
The Federal Evidence Blog has been following the few cases so far addressing whether theFifth Amendment may disallow efforts by the government to compel an individual to decrypt computer information. As one recent example, a court originally denied a government application to compel decryption under the Fifth Amendment, and then granted the ruling upon reconsidering additional information submitted in an ex parte application. See In the Matter of The Decryption of a Seized Data Storage System (EDWI May 21, 2013) (No. 13-M-449); See generally Compelling Access To Encrypted Information (Part II) (Jan. 30, 2012) (summarizing case). There is a new development in the case.
Court-Martial Trial Practice Blog