Articles Posted in Up Periscope

Now here is something useful for the policy makers, and by extension defense counsel.

Center for Prosecutor Integrity to Establish ‘Registry of Prosecutorial Misconduct’

The Army will soon begin mandatory discharge processing for any Soldier or officer convicted of a sexual assault.  There is no bar to how far they will go back in the persons career, and also it appears it will not matter if the person was allowed to reenlist.

Separation proceedings for the soldiers will be started regardless of the date of their conviction for the sex offense, according to the directive.

 

CrimLawProfBlog brings a link to a summary of last year’s criminal law cases at the Supremes.

The Supreme Court 2012 Term was one in which the Court tackled several of the most critical issues that arise in our criminal justice system. Perhaps most importantly, as the 50th Anniversary of the Court’s decision in Gideon v. Wainwright approached, Court addressed the problems presented by counsel who had not provided the effective assistance of counsel during the plea bargaining process. Whereas it was common knowledge that the vast majority of cases in the criminal courts of this country are resolved by plea bargaining, the Court had never required that court-appointed counsel provide competent advice when recommending rejection of a plea offer by the prosecution. It had not even been constitutionally required that counsel communicate to his client the existence of an offer that entailed a reduced sentence were the defendant to plead guilty. The Court also addressed the matter of what action by counsel would constitute abandonment of the client in the post-conviction phase of a case where the client had received the death penalty. And, finally, the Court considered what had remained an unresolved issue: was it constitutional to impose a sentence of life without parole for a juvenile who had been convicted of murder. This article provides analysis of the Court’s handling of these four critical issues.

Just the other day AFCCA had the IAC issue for consideration.  See United States v. Gerdes,  ACM S32091 (A.F. Ct. Crim. App. 14 Nov. 2013)(unpub.).

A little off topic, but still a useful reminder for drug or DUI cases in the military.

From the L.A. Times:

Crime lab officials said the “human error” occurred over nearly five months and led to mistakes in the forensic examination of blood alcohol content. But they insist the miscalculations were so few that they affect only about 200 cases. As few as 20 people could see their blood alcohol test levels drop below 0.08%, California’s legal definition of DUI impairment.

The aftermath of Tailhook is well documented, as is the connection to potential fallout to the innocent.  See Kingsley R. Browne, Military Sex Scandals from Tailhook to the Present:  The Cure Can Be Worse Than The Disease, 14 DUKE L. J. GENDER & POL. 749 (2007).

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1128&context=djglp

Not an uncommon trial counsel theme when a client has testified.  Recently, the

Fourth Circuit considers a prosecutor’s closing argument based on the trial evidence in which the defendant “lied” under oath; circuit notes again that this argument is improper, although the error in this case did not constitute plain error, in United States v. Woods, 710 F.3d 195 (4th Cir. March 18, 2013) (No. 11-4817)

What concerns are raised when a prosecutors argues, based on the trial evidence, that the defendant “lied” at trial? The Fourth Circuit provided an assessment of this issue, highlighting two risks from this type of argument.

Be it context, or something else such as human lie detector testimony, prosecutors often seek to go too far with law enforcement testimony.

Second Circuit highlights two important issues concerning law enforcement testimony: first, an officer may not provide lay testimony that is based upon “specialized training and experience”; and second, expert opinion testimony is not permitted on the defendant’s intent, in United States v. Haynes, _ F.3d _ (2d Cir. Sept. 5, 2013) (No. 12–626–cr)

h/t federal evidence review

Does this happen – has it happened to you?

The complaining witness has a Facebook or other social media page, or texts on their phone, or emails — and they complaining witness decides to delete them (or does so because law enforcement or a “victim advocate” tells them to).

Why is this not spoilation of evidence and why can’t you get an adverse inference instruction, especially when you can show relevance.

After an extensive investigation involving numerous intercepted recordings, to what extent can an agent provide opinion testimony about the meaning of the recordings? In reversing a conviction for a murder for hire conspiracy, the Sixth Circuit joins five other circuits (Second, Fourth, Eighth, Ninth and D.C.) in disallowingFRE 701 to permit an investigating officer to provide lay opinion testimony as to the meaning and significance of the recorded conversations of the conspirators; an insufficient foundation had been established to show the witness had first hand knowledge which would be “helpful in resolving issues” in the case; case highlights a split in the circuits, in United States v. Freeman, _ F.3d _ (6th Cir. Sept. 13, 2013) (No. 11-1798)

Law enforcement lay opinion testimony must meet the requirementss of FRE 701. The rule imposes three requirements: (1) the lay opinion must satisfy the “requirement of first-hand knowledge or observation,” under FRE 701(a); (2) the lay opinion must be “helpful in resolving issues” in the case, under FRE 701(b); and (3) the testimony but “not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702” under FRE 701(c). The circuits have taken differing positions as to the satisfaction of the first two requirements in the context of law enforcement lay opinion testimony. The Sixth Circuit recently reviewed this authority and noted a division among the circuits as to admission of law enforcement lay opinion testimony.

h/t federal evidence review

A trial is intended to be a win at the trial level.  Good trial lawyers never litigate just for an appeal, but at the same time must remember to preserve error for appellate review in case.

The Military Rules of Evidence allow for admission of obectionable hearsay (evidence) in some situations.  Usually that is a situation where there are multiple reasons why some evidence is objectionable, but there are one or more of the reasons could allow for admission.  As an example from the recent federalevidence.com posting,

What steps should a party take to ensure there is an appropriate record to preserve evidence error for appellate review? When is an objection sufficient to clarify the basis of the objection? The Seventh Circuit recently considered these issues in the context of whether challenged testimony was hearsay or offered to explain the defendant’s understanding. The issue was considered twice in an appeal, including an opinion that was amended, in in United States v. Leonard-Allen, __ F.3d __ (7th Cir. Aug. 29, 2013) (Nos. 12–3299, 12–3663)