Evidence Tag Archives — Page 2 of 3 — Court-Martial Trial Practice Blog

Impeachment

November 10, 2010 | The Law Office of Philip D. Cave

Professor Colin Miller uses an Alabama case to remind us that a prior misdemeanor conviction is not admissible under Rule 609(a).

Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is "no."

The prosecution had argued that the accused’s testimony had “opened the door.” The appeals court also rejected that basis for admission. Of interest though, for trial counsel, and for defense counsel to be looking out for, was this part of the court’s opinion.

A quick reminder for “documents” cases

November 4, 2010 | The Law Office of Philip D. Cave

My good friend Bill Cassara and I have done a lot of BAH/TCS fraud cases at court-martial under the UCMJ over the years. Typically the case involves a lot of documents from DFAS. The prosecution then calls a witness from DFAS to lay a foundation for the documents and then has the witness testify as to what the documents mean in terms of monies claimed and paid compared to the legal entitlements. Because these documents are of many pages the witness typically prepares a chart which summarizes the documents and the bottom lines. There is nothing wrong with that so long as the underlying documents are admissible (usually as business records and documents prepared and submitted by the accused), the chart is an accurate representation of the documents, and the witness who prepared the chart or summary is available for cross-examination.

The case of United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. Feb. 8, 2008) (Nos. 06-3088, 06-3089, 07-3016), noted by federalevidence.com, reminds us of this point.

Cross-examination might expose errors or inconsistencies in the chart. At which point the parties can refer to the original documents if necessary. Assuming the errors or inconsistencies are identified and cross-examined on the testimony is then judged as to its weight not admissibility.

Eyewitness accounts and testimony

October 17, 2010 | The Law Office of Philip D. Cave

MAJ Hasan’s UCMJ Article 32 hearing and likely court-martial is drawing and will continue to draw lots of attention — of course, duh. But just as we have seen in other high profile cases there are opportunities for what I call teachable moments. Here are two from the item posted by CAAFLog about the witness who was ordered to destroy a video of the shooting he made on his cellphone. Forget the rhetoric about whether or not the Army was engaged in a cover-up.

1. Contemporaneous video’s and photos can provide vital evidence for both sides.

Nixon said he remembered Hasan because of “his stature and just how he composed himself — stoic.”

Public records exception

October 7, 2010 | The Law Office of Philip D. Cave

“Now what I want is, Facts.. . . Stick to Facts Sir!” (Charles Dickens, Hard Times, p. 1, Oxford World’s Classics, 1998.)

Evidence may be admissible under Mil. R. Evid. 803(8) as an exception to the hearsay rule. Prof. Colin Miller reminds us that the exception is intended to cover recorded facts, not opinions.

Authenticity

September 30, 2010 | The Law Office of Philip D. Cave

Here’s a reminder about authenticating emails based on a posting from Prof. Colin Miller at EvidenceProfBlog. To paraphrase Prof. Miller:

And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

Judge, Jury, And Interrogator

September 9, 2010 | The Law Office of Philip D. Cave

Is how one of my favorite evidence blog prof’s describes a First Circuit case. I have previously commented on the issue in relation to MJ McDonald’s Army Lawyer article.

Federal Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Do Rodriguez and Gilbride mean anything?

July 21, 2010 | The Law Office of Philip D. Cave

United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010). (Thanks to an early posting of the decision by CAAFLog.)

Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness. Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining to confessions introduced against an accused. See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002), the rule applies to oral as well as written statements. United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002). This is a different rule than Mil. R. Evid. 106.

In deciding the military judge erred in his application of Mil. R. Evid. 304(h)(2), NMCCA identified six non-exclusive factors to consider on the issue.

Excited utterances

July 15, 2010 | The Law Office of Philip D. Cave

Federal Evidence Review has a good reminder that what may appear to be statements admissible as excited utterances may not in fact be so. Thus, defense as always your job is to ensure that the prosecution doesn’t get away with ritualistic or talismanic incantations of, “it’s an excited utterance (or some other exception)".”

United States v. Erickson, ___ F.3d ___ (8th Cir. July 12, 2010).

Doctor-Patient privilege

May 20, 2010 | The Law Office of Philip D. Cave

Federal Evidence Review notes the following:

In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)

It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.

Evidence – eyewitness “identification”

April 16, 2010 | The Law Office of Philip D. Cave

Professor Colin Miller has posted an excellent piece about the current status of expert testimony about the inaccuracies of eyewitness identification.

I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.