federal evidence review Tag Archives — Court-Martial Trial Practice Blog

Evidence issues for 2012

January 4, 2012 | The Law Office of Philip D. Cave

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions

Confrontation Clause: More Notice and Demand Rules?

Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations

Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause

Circuit Split: Admission Of Pre-Miranda Silence

Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?

More Judicial Criticism of the “Inextricable Intertwinement" Theory

Rule Amendments: “Restyling” Federal Rules of Evidence

Pending Rule Amendment: FRE 803(10) – Absence of Public Record

Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

On item 8., which will depend on how the President “adopts” the restyling. Interesting that there may be issues surrounding implementation of the restyled rules.

The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.

The Members sieve

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

Leaks from Members (or sometimes military judges) occasionally give rise to appellate litigation.

Here is an interesting piece on federal evidence review:

Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that "[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant’s failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, inUnited States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

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).

MJ Summer Camp – II

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

Your client is charged with burglary, theft, and false official statement. You call a good Sailor witness. The witness testifies. Imagine the questions I asked in MJ Summer Camp I, or just as easily that there has been no prior impeachment cross-examination.

Trial counsel: LTC Witness, does a good Sailor commit burglary? No.

Trial counsel: LTC Witness, does a good Sailor commit theft? No.

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.