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What the witness sees and remembers is a function of many factors specific to that witness and the crime scene:  the witnesses ability to see without glasses, the absence of any lighting at night.  What complicates matters is the deliberate or unintentional police actions (and actions of others – see ‘memory conformity’ issues).

The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.

The problem is that decades of studies show eyewitness testimony is right only about half the time – a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.

But now, Eyewitness Testimony is no Longer A Gold Standard, says AP.

The U.S. Supreme Court had a chance to establish a national standard for eyewitness testimony when it handled a 2012 case from New Hampshire. The court instead delegated that responsibility to the states, which could choose to overhaul their laws or do nothing at all. Most chose the latter.

In Maryland, however, legislators this week passed a bill that overhauls eyewitness identification procedures, joining roughly a half-dozen states and cities.


Why wrongful convictions

April 13, 2014

There appear to be ten fairly consistent reasons for a wrongful conviction, according to a NIJ researcher.

In his series of pods Dr. Gould discusses the reasons (transcripts are available at the pod).

I often, always, talk about confirmation bias in connection with military sexual assault investigations, through the 32, and through the referral process, and potentially at trial. Dr. Gould calls it “tunnel vision.”  In another portion of the pod Dr. Gould addresses discovery failures.


Center for Prosecutor Integrity.

The Center for Prosecutor Integrity is the nation’s only organization with a sole focus on enhancing prosecutorial ethics. The goals of the Center are to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions.

CPI sponsors the Registry of Prosecutorial Misconduct, supports media efforts, and partners with other groups to achieve policy reforms at the state and national levels. As a public interest law initiative, CPI does not accept individual cases.

The Center for Prosecutor Integrity is a non-partisan 501(c)3 non-profit organization. CPI addresses prosecutor misconduct of all types, particularly misconduct associated with sexual assault and domestic violence cases.

Of particular interest is their registry.  Their graph of the most common show Brady violations and inadmissible evidence as the substantially most common types of prosecutorial error.


There is an impact

April 11, 2014

Congress, commanders, and others ignore the effects of false sexual assault allegations.  They don’t fit the meme.  They are quite willing and happy to ignore such happenings or possible happenings.

16-year-old commits suicide after being falsely branded a rapist by drug-dealing gang.  A schoolboy hanged himself after he was falsely branded a rapist by fellow pupils after pulling out of a playground drug dealing racket, an inquest heard.

Have wrongly military accused’s committed suicide as a result of false allegations – I know of at least one, and one possible one.  My colleagues know of others.

The false sexual assault allegations deniers also deny motivations for alleging rape.  Motivations such as:

[A] Scorned woman [who] falsely cries rape.  A spurned lover whose cry of rape cost police coffers £10,000 was jailed for nine months yesterday.  Belfast Crown Court heard that Lisha Tait cried rape after being given the “cold shoulder” in a Belfast nightclub by a man she had a previous liaison with.

I have posted this before:

Woman allegedly cried rape 11 times to avoid taking the bar exam.  Rhiannon Brooker, 30, is on trial for allegedly falsely accusing her boyfriend of repeatedly raping and assaulting her — the prosecution says she cried rape 11 times — which caused him to be arrested, charged and held in custody for 30 days, according to this source. She purportedly used the allegations as “extenuating circumstances” in a failed attempt to dodge her exams, according to the prosecution. According to a news report: “After withdrawing her allegations Brooker confirmed they were false, and admitted that injuries seen by witnesses, including her friends and doctors, were self-inflicted, the court heard.” Yet, she is still denying that she committed an act tending, and intended, to pervert the court of justice. It is not clear what her defense might be.

And to wrap up with this:

In a comment under Caroline Kitchens’ opinion on “rape culture” in Time, the staff of the Colorado Coalition Against Sexual Assault says this: “. . . false reporting is NOT a problem, actually only 2-8% . . ..”

Even accepting the accuracy of that number (which erroneously suggests that 92-98 percent of all rape claims are actual rapes and doesn’t bother to acknowledge that the majority of rape claims can’t be determined to be actual rapes, misidentified rapes, or false rape claims), 2 to 8 percent is a very significant number.

How is it proper to raise awareness about rape by trivializing a completely different problem that victimizes significant numbers of people? Since when did it become fair game to dismiss out of hand a problem that destroys lives?

The comment is insensitive to the community of the wrongly accused, and it has no place in advocacy for rape victims.



Capacity to Consent to Sexual RiskElaine Craig, Dalhousie University – Schulich School of Law, 2013

Forthcoming in New Criminal Law Review, Vol. 17, Number 1, pps 103–134. © 2014 by the Regents of the University of California. All rights reserved.


In delineating the legal boundaries of capacity to consent to sexual touching, law makers and jurists must grapple with tensions between sexual liberty, morality, sexual minority equality interests, and public safety. Legal rules that stipulate that an individual cannot consent in advance to unconscious sexual activity or to sado-masochism, or that an individual under a certain age or with a particular intellectual capacity cannot consent to sexual touching have an impact on sexual liberty and should be justified. This paper argues that establishing these limits based on normative assessments about specific sexual acts poses too great a threat to the liberty interests of women and sexual minorities. A better approach is to accept that in sex, as is probably true of all complex human interactions, an accurate application of the definitional turns on the particular. Context is everything. No sexual act, including one that objectifies, is inherently harmful. The paper offers an alternative approach by suggesting that laws defining capacity to consent should be justified on the basis of assessments of risk rather than moral assessments about sex. This stands to circumscribe law’s limits on sexual liberty in ways that are better for women and sexual minorities. What this approach does not resolve is the paradox presented by the reality that although sex is inherently contextual, criminal laws prohibiting violations of sexual integrity should not be applied contextually. The paper explores how a recent legal ruling in Canada denying the capacity to provide advance consent to unconscious sex reveals this paradox. The discussion concludes by asserting that the failure of law to exclude morally inculpable unconscious sex between ongoing sexual partners reveals the limits of law and in doing so suggests the need to reevaluate the law’s conception of the relationship between sexual liberty and sexual integrity.
Or how about.  Flirtation or sexual harassment? Here’s how to tell the difference, on TheWomen’sBlog at The Guardian.


Some evidence notes

April 11, 2014

Consistent with military law, the federal circuits generally follow the principle that evidentiary errors in a judge alone case are often nonprejudicial.  The basic theory being that judges are presumed to know and apply the law, and will ignore impermissible evidence even where there has been no objection.

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a “presumption of conscientiousness” in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that “had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence,” in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701).

On a side note to this case, another caution regarding “talismanic incantations” of admissibility of other acts evidence.

[T]he court must carefully consider how the particular Rule 404(b) evidence will be used to prove intent, knowledge or lack of mistake and make certain that it is not through the use of a propensity inference.” Reed, _ F.3d at _ (citing United States v. Miller, 673 F.3d 688, 697 (7th Cir. 2012); see also United States v. Lee, 724 F.3d 968 (7th Cir. 2013)). In particular, the circuit had found in Miller, that the use of plastic bags to package crack cocaine was “far too generic in drug cases to make a pattern of two acts over eight years probative of anything beyond propensity.” Miller, 673 F.3d at 699 -700.

The Seventh is on a particular path to significant criticism of MRE 404(b) evidence.  The case above highlights.  See federalevidence review.  “As noted in the Federal Evidence Blog the past few years, the Seventh Circuit continues to criticize and closely scrutinize the admission of other act evidence under FRE 404(b). One aspect that has drawn criticism concerns “inextricably intertwined” evidence that may be admitted independent of FRE 404(b).”  See also their, Rule 404(b) -Ten Common Questions & Misconceptions.

How about prior inconsistent statements.  “Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.”

In considering the admission of a witness’s prior inconsistent statement under FRE 613(b), what process should be followed in asking the witness to confirm the prior statement? As the Eleventh Circuit recently noted, as long as “an opportunity to explain or deny the statement” was available, the rule does not required any particular time or any particular sequence in which this opportunity is made available, in United States v. Feliciano, _ F.3d _ (11th Cir. April 3, 2014) (No. 12-15341).

How do we tell if something is testimonial for Sixth Amendment confrontation purposes.  The Fifth reminds us.  Fifth Circuit reverses conviction after the government failed to meet its burden to show that an affidavit was non-testimonial under theConfrontation Clause under the Supreme Court’s “primary purpose” test; circuit also rejects proposed accusatory test as lacking support in precedent or in the text of the Sixth Amendment, in United States v. Duron-Caldera, _ F.3d _ (5th Cir. Dec. 16, 2013) (No. 12-50738)

When a statement is introduced from a non-testifying witness, the Supreme Court applies a primary purpose test under the Sixth Amendment to determine whether the statement is testimonial. See Davis v. Washington, 547 U.S. 813, 822 (2006) (adopting “primary purpose” test to determine testimonial nature of statements). The Fifth Circuit recently considered whether a forty-year old affidavit was admissible under the Confrontation Clause.


Still in flux?

April 11, 2014

There should be a reassessment and there should be “amended” rules for how cell phones, tablets, and computers are searched.

Accessibility to computers and cellphones created an extraordinary change in how we communicate, and in particular how we retain and store private information about those communications.  Along with the nature of the communications, the ability to retrieve that private information has also dramatically changed.  No longer do we put a paper copy of a letter in a file folder and cabinet in our home.  Often we carry a digital copies of that letter in our pocket, a cellphone holster, a tablet, and a laptop computer.

In the first of several posts Orin Kerr addresses the Supremes on cellphones:  “The need for computer-specific Fourth Amendment rules in the cell phone search cases.

The cell phone search cases currently pending at the Supreme Court, Wurie and Riley, offer the Justices three basic choices for when the Fourth Amendment allows a warrantless search of a cell phone at the time of arrest under the search incident to arrest exception to the warrant requirement. The answer could be “always,” underUnited States v. Robinson; “sometimes,” primarily under Arizona v. Gant; or “never,” under Chimel v. California. In this post, I want to explain why I think the answer shouldn’t be “always.” In my next post, I’ll explain why I think that both “sometimes” and “never” are plausible answers, and I’ll try to mark out the parameters of the choice between them.

He is right – of course- that “always” should never be the answer, and that, “the Court should recognize that Fourth Amendment jurisprudence should in some cases adopt computer-specific rules.”


It’s a privilege

March 29, 2014

I’ve not heard the awesome power of de novo review discussed this way.

On the basis of the entire record we cannot find that the court was wrong as a matter of law in finding an intention to desert. We are, however, by Article 66(c) of the Code privileged to say that we differ from the court in finding as a fact whether such intention existed. We determine that it did not.

United States v. Bolish, 12 C.M.R. 649 (C.G.C.M.R. 1953).

Rather I have heard read it this way.

Courts of Criminal Appeal are something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused. Frequently, they are acknowledged to have awesome, plenary, de novo powers of review under Article 66(c). United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). “A clearer carte blanche to do justice would be difficult to express” was the observation in United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991). Thus, the question before us is not whether a Court of Military Review can, in the interests of justice, receive and consider an affidavit on the merits of a case. Cf. United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973).


Trial craft

March 24, 2014

Brother Bill sent me a link to this Onion piece.,30790/

It is a good teaching tool for those of us who go to court and actually try cases in front of members.

I did a Marine case some years ago where the feedback was interesting.  The members spent a lot of time looking at the trial counsel’s belt and gig-line that was off during his closing argument.  Something of a distraction.

I did another Marine case even longer ago where the feedback was also interesting.  We had a Marine E-8 defense witness.  The trial counsel thought he’d try out some recent trial advocacy tips.  Apparently the tip included turning away from the witness and facing the members while asking a question, and then being somewhat derisive in tone.  After ward the members asked the military judge to counsel the trial counsel that it didn’t help his cause to disrespect a SNCO, even if she was a defense witness.

There you go – tears all around.


Worth the read

March 18, 2014


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