Court-Martial Trial Practice BlogThanks to Federal Evidence Review for a good summary of cases and issues involving 404(b) issues in federal courts.
Articles Tagged with Evidence
Up periscope
I’m traveling to the USDB (and get to come home), so here are some hits.
I follow fourthamendment.com blog every day. Here is part of his reference to Huntzinger, and CAAF’s pending oral argument.
Don’t expect a decision in a while. I’ve always been intrigued by the quality of opinions from the CAAF, so I’m looking forward to it.
Crawford – Melendez-Diaz – urinalysis
Here is a case from federalevidence.com:
Supervisor expert testified about his role in the peer review process; passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause; circuit also distinguishes Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), in United States v. Turner," _ F.3d _ (7th Cir. Jan. 12, 2010) (No. 08-3109)
A recent Seventh Circuit case revisits the issue of expert testimony which refers to the analysis of another expert. Is the Confrontation Clause violated when a supervisor testifies about the peer review process, his role in confirming reviewing the test results, and the initial results of another chemist? On the fact of the case, the circuit concluded there was no constitutional violation.
Police reports are not evidence
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth…matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.
In other words, police reports are not admissible in criminal cases. But why? That was the question addressed by Judge Posner in his recent opinion in United States v. Hatfield, 2010 WL 114930 (7th Cir. 2010), although his analysis was irrelevant to his conclusion.
That left the Seventh Circuit with the question of why police reports are inadmissible in criminal cases. The court noted that
Impeachment by prior conviction
Every so often the comes up of impeachment by prior conviction under Mil. R. Evid. 609. The reminder is that:
The fact of a pending appeal does not defeat admission, but it may be brought up and discussed. Mil. R. Evid. 609(e).
A summary court-martial may not be used to impeach under this rule. There may be other ways to impeach with conduct subject to discipline at a summary court-martial, but not Mil. R. Evid. 609. (Further evidence that an SCM is not considered a “conviction?”)
Eyewitness identification at court-martial
Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction
Sandra Guerra Thompson
University of Houston Law Center
Ohio State Journal of Criminal Law, Forthcoming
University of Houston Law Center No. 2010-A-1
Abstract:
Despite a growing awareness that mistaken eyewitness identifications contribute significantly to wrongful convictions, most courts continue to apply federal due process criteria for admissibility of eyewitness identification that has proved useless in protect against the use of highly unreliable evidence. In response, this Article reviews the path-breaking decisions of several State Supreme Courts that have blazed their own trail. It explores the issues that courts have addressed, the rules they have devised, and the legal grounds for their decisions, and from this, concludes that State Supreme Courts can implement appropriate criteria that would in fact promote accuracy and fairness in the use of eyewitness identification.
Part I briefly outlines and critiques the Supreme Court’s jurisprudence on eyewitness identifications and due process. It treads on ground well-worn by scholars who have for decades decried the Court’s failure to provide a due process test that would protect against the use of unreliable identification evidence. Part II explores the role that State appellate courts can play in developing a jurisprudence of eyewitness identification evidence that meaningfully incorporates social science research and carefully balances the interests of law enforcement and the accused.
Finally, because of the superior role that judges have in protecting both constitutional and civil rights as well as the integrity of the administration of criminal justice, the article concludes that it is incumbent on State Supreme Courts to show leadership in developing solutions to the problems that plague this area . Accordingly, Part III argues that State Supreme Courts are well-suited to take an active part in the “laboratory” model of criminal justice that characterizes our federalist system.
I object – some reminders
Prof. Collin Miller has this item on his blog which is an excellent reminder about objections – an issue for the defense much more than prosecution.
You’ve seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, "Objection, your Honor," and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, "Objection," in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.
Mil. R. Evid. 103(a)(1) requires that when making a motion counsel at court-martial, “[state] the specific ground of objection, if the specific ground was not apparent from the context[.]”
Co-conspirator reminder
With a seasonal title, Prof. Colin Miller reminds us of a particular caution when seeking to admit statements of a co-conspirator – the statements have to be made before the crime is committed. There should be the same impact in a court-martial prosecution under the UCMJ.
Prof. Colin Miller, Later On, We’ll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions.
As the text of this Rule [Indiana/Fed./Mil. R. Evid. 801(d)(2)(E)] makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated.
Limiting instructions
Here I’m talking about limiting instructions at court-martial, not alleged curative instructions.
A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes. Here is a reminder from federalevidence blog of how that works.
In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)
Background testimony by police
I have previously noted the First Circuit’s criticism of prosecutors calling police to set the “context” of an investigation. The view being that’s it’s an attempt to have the police testify to a whole lot of inadmissible evidence and hearsay, and prejudice the members. The same issue should be avoided and objected to in a court-martial.
Prosecution “overview” witnesses and More on groundwork.
According to a post at FederalEvidenceBlog, the Tenth Circuit is joining in condemning the “apparently widespread abuse” of “background” testimony.