Court-Martial Trial Practice Blog

No probation? Why not?

April 12, 2013 | The Law Office of Philip D. Cave

Well, the military has a sort of probation, but it’s not well formalized. Suspending a sentence is a form of unsupervised probation. Maybe some more detailed supervision would be appropriate. No reason a commander can’t do that already – conditions on suspending punishment. Also, the Services – well the Air Force and Army used to have a fairly vibrant return to duty program. Whether these programs will be available is a different question in today’s drawdown environment.

Army JA MAJ Evan R. Seamone is something of a leader in writing about actions for military personnel suffering combat related PTSD and TBI. So this piece is not unexpected.

If the civilian justice system has embraced treatment courts that care for veterans stricken with combat stress and brain injuries instead of punishing them, why can’t the military justice system? It can and it should, asserted Maj. Evan Seamone, the chief of military justice at Fort Benning, Ga., in an article published in the most recent issue of the journal Military Law Review.

Resource

April 9, 2013 | The Law Office of Philip D. Cave

I follow Prof. Colin Miller’s EvidenceProf blog daily. Didn’t realize it until now, but his “work” is available in eBooks for Legal Education.

This is a product from the Center for Computer Assisted Legal Instruction, and some of it appears to be free.

Confrontation and lab reports

April 6, 2013 | The Law Office of Philip D. Cave

Here is an interesting opinion regarding expert testimony in DNA examinations.

Young v. United States, in the DC Court of Appeals.

Circumstantial evidence

April 5, 2013 | The Law Office of Philip D. Cave

I sometimes cringe when the circumstantial evidence instruction is given about waking up and the grass is wet. In some neighborhoods, all that means is that people’s lawn sprinklers have been on during the night or early morning, not that it rained in the night. Sometimes I make that point to be careful about the concept. But, here is a much more scholarly and pithy discussion of circumstantial evidence and instructions.

Eugenee M. Heeter, Chance of Rain: Rethinking Circumstantial Evidence Jury Instructions, 64 HASTINGS L. J. 527 (2013).

Crawford and forensics

April 5, 2013 | The Law Office of Philip D. Cave

Here is a piece by two titans of science in the courtr00m, with due deference to my former evidence professor, Paul Gianelli.

Confronting Science: Expert Evidence and the Confrontation Clause

Jennifer Mnookin

University of California, Los Angeles (UCLA) – School of Law

David H. Kaye

Penn State Law
February 23, 2013
Supreme Court Review, Forthcoming
Penn State Law Research Paper No. 11-2013
UCLA School of Law Research Paper No. 13-08

Abstract:
In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.
In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal bases. The most prominent and fully developed argument for admission was that the references to the work of the analysts who actually did the testing but who never testified were admitted for a purpose other than their truth. Although we maintain that this argument is, on the facts of Williams, implausible, we also recognize that in other, relatively limited instances, expert basis evidence might legitimately be introduced for a purpose other than its truth.
After striving for precision on this doctrinal point, we step back and suggest that the ongoing anxiety about how to think about expert evidence and the Confrontation Clause exists in large part because the Court has yet to face directly a set of larger, background concerns. There is significant uncertainty about how, and to what extent, scientific evidence should be treated as special or distinct from other kinds of evidence for confrontation purposes. We suggest that scientific and expert evidence might warrant some limited special treatment, based on what we see as one of the most critical dimensions of scientific knowledge production — that it is a collective, rather than an individual enterprise. Recognizing that scientists inevitably rely and build on facts, data, opinions, and test results of others, we suggest that courts should engage in a modest form of scientific exceptionalism within Confrontation Clause jurisprudence, through efforts to create procedures that respect the fundamental values of the Confrontation Clause, but also adapt when necessary, to the epistemic structures and processes of science.

Who is the proponent

March 27, 2013 | The Law Office of Philip D. Cave

The ever pithy Prof. Colin Miller has an excellent post about issues under Mil. R. Evid. 1004.

The best evidence rule is now in Mil. R. Evid. 1004. The rule requires originals, not and/or, unless the original is lost or destroyed. So, when you object make that distinction clear. Prosecutors and military judges often conflate the rule into, a it doesn’t matter rule. Before the prosecution can use copies they have to establish that the original is lost or destroyed.

Now, what happens if the original is lost or destroyed due to the fault of the possessor of the original – for example the victim destroys text messages or other information, in bad faith.

Always worth the read

March 27, 2013 | The Law Office of Philip D. Cave

Anything by Prof. Leo is well worth the read.

Leo on Interrogation Contamination

Richard A. Leo (University of San Francisco – School of Law) has posted Why Interrogation Contamination Occurs (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The problem of police interrogation contamination (disclosing or leaking of non-public facts) is pervasive in documented false confessions leading to wrongful conviction. The presence of unique and detailed crime facts in a false confession creates the illusion that the defendant volunteered inside information about the crime that “only the true perpetrator could have known,” thus seemingly corroborating a false confession as verifiably true. This article argues that confession contamination occurs because (1) the guilt-presumptive psychology of American police interrogation is designed to trigger and perpetuate confirmation biases that (2) lead investigators – seemingly inadvertently – to provide detailed case information to suspects as part of their pre- and post-admission accusatory interrogation strategies, but (3) has no internal corrective mechanism to catch or reverse investigators’ misclassification errors or their confirmatory interrogation techniques.

Confrontation on court records

March 27, 2013 | The Law Office of Philip D. Cave

Occasionally the prosecution wants to use court records,

There is an evidentiary exception that can apply. But, what about the Confrontation Clause? Federalevidence review has a post on that.

Eighth Circuit reverses conviction for being an accessory after the fact by assisting another (Clark) in avoiding apprehension for committing a murder based on Confrontation Clause violation resulting from the introduction of a Court Minute Entry (of “Clark’s guilty plea as conclusive proof that” he had committed the offense) and without an opportunity to cross-examine the declarants about the statements, in United States v. Head, _ F.3d _ (8th Cir. March 1, 2013) (No. 12-2625).

Appellate judicial notice

March 24, 2013 | The Law Office of Philip D. Cave

The general rule is that you are stuck with the record on appeal and can’t supplement it with new or additional facts.

There are however some limited exceptions to the general rule for items of appellate judicial notice. Here is a short piece discussing some of the exceptions.

An example from military appeals:

Intoxiliezer

March 23, 2013 | The Law Office of Philip D. Cave

The various breath test instruments used by the military and civilian police are subject to challenge, for a number of reasons.

Here’s a “report” about the Intoxilyzer 8000 courtesy of PS.