expert Tag Archives — Court-Martial Trial Practice Blog

Blazier trail

January 1, 2011 | The Law Office of Philip D. Cave

You may be familiar with the quote:

In every case involving [state your poison], we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962)(emphasis added).

And you may be familiar with this research.

Bullcoming sitrep 1

September 29, 2010 | The Law Office of Philip D. Cave

Here is an observation by federalevidence.com:

One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.

Humor in uniform lawyering

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

This report from Savannah.now questions why expert payments within the 3ID claimancy take so long.

The military judge also questioned why experts for the defense continue to have difficulties obtaining payments for work done on Bozicevich’s behalf as attorneys prepare for a February 2011 capital court-martial trial.

The humor is that this is neither a new problem nor a problem limited to the 3ID, or the Army for that matter.

CAAF issues two decisions

February 23, 2010 | The Law Office of Philip D. Cave

United States v. Douglas. This is a UCI case. The military judge found UCI and then crafted a remedy. The issue on appeal related to the appropriateness of the remedy and whether or not the appellant had accepted the remedy and actively participated in the remedy. The AFCCA decision was reversed.

If the record disclosed that the reasonable remedy had been implemented in full, Appellant’s participation in and apparent acquiescence at trial to the remedy crafted and Appellant’s
disavowal of any claim of ineffective assistance of counsel would end the inquiry. However, because the record does not disclose whether the remedy crafted by the military judge was
actually implemented in full, under the facts of this case we devolve to the ordinary test whether unlawful command influence deprived Appellant of access to character witnesses. United States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining the government’s burden to establish beyond a reasonable doubt that defense access to witnesses was not impeded by unlawful command influence). We are not convinced beyond a reasonable
doubt that Appellant was not thus prejudiced. United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a reasonable doubt the correct quantum of proof applicable to issues of unlawful command influence). Accordingly, we overturn the United States Air Force Court of Criminal Appeals.

The facts of this case are not uncommon. Commands routinely give no contact orders to an accused (but interestingly not their own witnesses). It is not unusual for a command to cast an accused adrift, make them an outcast, and directly or indirectly imply to others that supporting and helping the outcast will be viewed with disfavor.

Crawford, Melendez-Diaz, Briscoe – and now Pendergrass v. Indiana

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

Here is a link to the full cert petition in Pendergrass v. Indiana. The question presented is:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).

Shaken baby syndrome

January 19, 2010 | The Law Office of Philip D. Cave

Does it exist or not. Here are a couple of news articles about a pending case in Fairfax, VA.

Shaken baby syndrome itself is put on trial in Fairfax court

Shaken-baby syndrome at center of Fairfax trial

Eyewitness identification

December 24, 2009 | The Law Office of Philip D. Cave

I have done several posts on this blog (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. 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. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

Blogs Prof. Collin Miller. Note that the Military Judges’ Benchbook already has an instruction about cross-racial identification for use at court-martial. Prof. Miller:

"'[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.’"…Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present….For example, people identify members of their own race with greater accuracy than they do members of a different race….In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit’s appearance, and the presence of a weapon or other distractions….Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications….Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy….That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.

Faith in police sponsored labs

December 17, 2009 | The Law Office of Philip D. Cave

Before we place too much faith in police sponsored and monitored laboratories, here is a word of caution.

The New York State Police’s supervision of a crime laboratory was so poor that it overlooked evidence of pervasively shoddy forensics work, allowing an analyst to go undetected for 15 years as he falsified test results and compromised nearly one-third of his 322 cases, an investigation by the state’s inspector general has found.

New York Times reports.