Articles Posted in Evidence

There is an excellent post at Volokh Conspiracy.

Here’s the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer’s testimony. The federal constitution, as interpreted by Brady v. Maryland and its progeny, requires prosecutors to disclose to defendants any favorable, material evidence known to the prosecution team, including evidence relating to a witness’s credibility. Much impeachment evidence can be found in a police officer’s personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.

Here’s what I ask for in my discovery requests.

There are a couple of interesting items in Vol. 224, MIL. L. REV.

MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS, by Major David C. Lai.  This is relevant to me because I have an appellate case where there are issues with the client’s current competency and there were at trial.

ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? By Major Matthew E. Dyson.  This is highly relevant in regard to the ongoing sexual assault issues and considerations of by-stander behavior.

On 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial.  Changes to the rules of evidence are included.  It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati.  Basically, a military judge grants suppression when

“exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”

Mil. R. Evid. 311(a)(3) (2016).

Yes, is my answer, or at least that is my answer in a brief filed with the Army Court of Criminal Appeals and in several arguments at court-martial.

Under Mil. R. Evid. 801(2), you can offer the out of court statements of an opposing party or certain statements of that parties lawyer as evidence.  Such evidence is not hearsay.

(d) Statements that Are Not Hearsay.

The Army legal websites are back en clair, having been unavailable to the public for about five to six weeks.  Of course, they came back up just as the AFCCA and CAAF were going dark.  Anyway.

United States v. Commisso, No. 20140205 (A. Ct. Crim. App. 29 April 2016),

has an interesting discussion and resolution of “inappropriate relationships” under ¶4-14.b., AR 600-20.

In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order.  The Attorney General of the United States issues several manuals for U. S. Attorneys.  This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation.  It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

We all laugh at TV shows and movies which we think of as fantasy.  The CSI shows, NCIS, JAG, among .  We ..get a laugh out of them.  But reality may make you cry.

Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice.  Boston Review, November 16, 2015.

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.

There are many problems with this opinion.

He notes that:

The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.

He notes then the general purpose behind evidence such as DNA results.

The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches.  The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401?  To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place.

Indeed, as the FBI itself states:

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