Articles Posted in Evidence

I always counsel clients and family that there is NO parent-child privilege in courts-martial under the UCMJ (or in civilian court for that matter).  This is important to know and for the military defense lawyer to make clear at the earliest opportunity.  Any communications between a child and the parent can be used in evidence if known.  That doesn’t mean military investigators or military prosecutors can force a parent to disclose information – well except by subpoena as a court-martial witness.  A parent is free to decline to be interviewed if they want. During initial discussions with your military defense lawyer it is always important to discuss the limits to do with privileged communications.  Reading the UCMJ, the Manual for Courts-Martial, and the Military Rules of Evidence, you can get a good basic overview.  Remember, it is always better to discuss specifics with your military law attorney. Rules of evidentiary privilege are found in Rules 501 to 514 of the Military Rules of Evidence (MRE).  The most common privileges you hear about are the attorney-client, the spousal privilege for the accused and for the non-accused spouse, the psychiatrist-patient privilege, and the clergy privilege.  Each of these rules, except for MRE 514 are long-standing and well developed.  The two more recent developments have been the exception where spouses are substantially and jointly involved in (the same) criminal activity, and the addition of the “victim advocate – victim privilege.”  The Court of Appeals for the Armed Forces had rejected the joint crime exception because that was not in the Rule at the time.  See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007).  There is still some ambiguity and perhaps confusion whether there is an exception to a privilege through forfeiture by wrongdoing.  See e.g., United States v. Marchesano, 67 M.J. 535 (A. Ct.Crim. App. 2008), pet. denied 67 M.J. 371 (C.A.A.F. 2009). Under the UCMJ there is no parent-child privilege, nor  is there one in any MRE.  See United States v. Landes, 17 M.J. 1092 (A.F.C.M.R. 1983); United States v. Kelly, ACM 26707, 1988 CMR LEXIS 719 (A.F.C.M.R. September 2, 1988)(unpub.).  And in light of the analysis in Custis, it is unlikely the appellate courts can graft one on.  This is consistent with federal court practice. Recently the Fourth Circuit has ruled that a federal trial judge erred by “adopting the parent-child privilege and excusing” a nineteen year old son “from testifying before the grand jury” in a firearm investigation involving his father[.] In Under Seal v. United States, _ F.3d _ (4th Cir. June 16, 2014) (No. 13–4933);

 The Fourth Circuit declined to apply a parent-child privilege. In reaching this conclusion, the circuit noted: “No federal appellate court has recognized a parent-child privilege, and we decline to do so here.” In particular, the circuit noted that “Doe Jr. has not made a strong showing of need for the parent-child privilege, and ‘reason and experience’ do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed. R. Evid. 501.” Under Seal, _ F.3d at _ (citation omitted). In arriving at this decision, the circuit canvassed the cases that have considered the issue at the district court and circuit levels.

Thanks to federalevidence.com for bringing this to our attention. In addition to the Fourth, the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh federal circuits agree.  Federal evidence review blog notes that district courts in Nevada, Connecticut, and Washington do seem to have recognized such a privilege. Regardless, a military accused and his parents should continue to exercise care in what discussions they have about an alleged offense.  There may be a limited way to create privileged communications, but it is not under any sort of parent-child privilege.  But these are matters to be discussed with the military defense lawyer first.

Eighth Circuit reviews whether a challenged evidence ruling by the trial court was properly preserved for appeal under FRE 103(b); the issue turned on whether the trial court’s ruling was “tentative” or “definitive”; the objecting party holds the burden to clarify the nature of the ruling, in United States v. Young, _ F.3d _ (8th Cir. May 23, 2014) (Nos. 12-2527, 12-2593).

I have made this point before about objections.  You do an excellent job of making the objection, but did you actually preserve it.  Most judges will give you a direct definitive answer on your objection.  Some however, deliberately or otherwise punt the ruling.  If you get a definitive ruling then the objection is made and preserved.  If you get punted, you MUST make the objection again, or as in Young here, you have to pin the judge down.

The consequences of failing to preserve an evidence issue for appeal can be fatal. Either the issue may be waived or it may be reviewed for plain error under FRE 103(e). Under FRE 103(b), addresses the circumstances in which a party needs to renew an objection at trial: “Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” the application of this rule was recently reviewed by the Eighth Circuit.

The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page).  The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

BLUF:  We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

The first step in CAAF’s analysis was to decide that – yes – the evidence was legally insufficient for the finding of guilty. CAAF discussed and affirmed the obvious, that the trial counsel had failed to have evidence admitted showing the underlying drug which comprised the ecstasy in this case was on the controlled substances lists.  “In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.”  Slip op. at 8.

The court then turns to the judicial notice issue and immediately “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.”  Slip op. at 10.  The court cites to a SCOTUS case, the Rules Advisory Committee Notes, and its own case of United States v. Williams, 17 M.J. 207 (C.M.A. 1984).

The court states the problem that AFCCA “took the “extraordinary step” of taking judicial notice of an element not proven by the Government.”  Slip op. at 11.  Such a step is error and is not justified because there was a failure of notice and opportunity to be heard and the AFCCA judicially noted an element of the offense. Id.

CCA’s and CAAF may still take appellate judicial notice.  Future litigation, if trial counsel continue to fail will likely be focused on what the court means with the statement:

a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.

Similar to what the court said thirty years ago in Williams:

Judicial notice is a procedure for the adjudication of certain facts or matters without the requirement of formal proof. It cannot, however, be utilized as a procedure to dispense with establishing the government’s case.

The court relied heavily on the due process issue and Williams.  Williams was a case where the government failed to introduce or get judicial notice of a regulation banning the sale of marijuana.

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.

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.

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.”

Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection.   Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments.   This is a particular bugaboo of my when LE agents and trial counsel stray from the correct path.  This involves judgment and discretion on whether to object.

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)

It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g.Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A “Serious” Crime Without A Search Warrant

4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

5. Certification (a civil case).

6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

7. Addressing Juror Internet Research During Trials

8. Electronic And Internet Evidence Issues

9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

10.  Rule Amendments: FRE 803(10) (Absence of a Public Record)

Each of the above issues had something of value and interest to military justice practitioners.  For example:

In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.

And now, “we look forward at some key evidence issues that may arise in 2014.”

 Key Evidence Issues for 2014

 1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

4. Open Issue (civil case):

5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

6. Legislation: Will Congress Enact a New Media Shield Privilege?

7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts

9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

10.  Considering the Role of Cameras in the Courtroom

Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.

[T]he second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.

(Note:  I have one case pending at a CCA on issue 5 – impeaching a verdict.)

It is unusual in military cases to have evidence of microscopic hair analysis.  But, it’s worth keeping up on, just in case.  Also, the point below is further substantiation of the National Academy of Sciences critique of forensic “science” evidence.  A 2009 news release on the NSA report had this to say:

A congressionally mandated report from the National Research Council finds serious deficiencies in the nation’s forensic science system and calls for major reforms and new research.  Rigorous and mandatory certification programs for forensic scientists are currently lacking, the report says, as are strong standards and protocols for analyzing and reporting on evidence.  And there is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic methods.  Moreover, many forensic science labs are underfunded, understaffed, and have no effective oversight.

Interestingly, in April 2009, before the NSA report was released, the FBI published a short piece about hair examination, which seems to support the reliability of MHE.

Various state and federal organizations have responded to the NSA report in various ways.

The Houston Chronicle reports, Hair Analysis: The Root of the Evidence Problem (Texas takes on first-in-the-nation statewide case review).

The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas’ planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

The Innocence Project released this information in July 2013:

 Today the Innocence Project, the National Association for Criminal Defense Lawyers (NACDL) and its partners announced a groundbreaking and historic agreement with the FBI and the Department of Justice (DOJ) to review more than 2,000 criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence. The agencies agreed to undertake the review after three men who had served lengthy prison sentences were exonerated by DNA testing in cases in which three different FBI hair examiners provided testimony which exceeded the limits of science and contributed to their wrongful convictions. The review will focus on specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.

There is an interesting reminder (a la Phillip Mills) that it is not always the “science” that is wrong, but the examiner and the examiners opinions.

Arnold Melnikoff, the former lab director at the Montana State Crime Lab, is the poster child for improper hair testimony. Melnikoff, Joyce Gilchrist in Oklahoma City and others who lacked the proper training and casework experience, were found to have overstated the significance of microscopic hair comparison results in court.

A forensic toxicologist, for example, who detects a certain level of drugs in the blood of a suspected impaired driver, and later overstates the level of impairment during court testimony, does not invalidate the science of toxicology by virtue of their improper testimony.

Similarly, when the FBI discontinued the service of comparative bullet lead analysis in 2005, it was not the science of lead analysis that was bad. It was the significance assigned to the results that was flawed.

Certainly, the interpretation of results is a part of science.  But the distinction has relevance to our criminal justice system, which must be able to recognize the difference between junk science and isolated instances of junk application.  The two are very different.

[Update]

 The U.S. Department of Justice and the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) today announced appointments to a newly created National Commission on Forensic Science. Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system.

 

 

 

 

 

 

 

 

Prof. Colin Miller asks, and then gives.

The recent opinion of the United States District Court for the Southern District of Florida in Dingman v. Cart Shield USA, LLC, 2013 WL 3353835 (S.D.Fla. 2013), addresses three interesting questions under Federal Rule of Evidence 609: (1) are convictions resulting from nolo contendere pleas potentially admissible under Rule 609; (2) is a conviction for failure to register as a sex offender a crime of dishonesty or false statement under Rule 609(a)(2); (3) and should a conviction for failure to register as a sex offender be admissible under Rule 609(a)(1)?