Articles Posted in Evidence

As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered.  MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door.  I might have successfully litigated a motion in limine to exclude evidence.  But now I have the key and have to be careful I don’t give it to the prosecution to use.

There are other ways the defense can open the door to otherwise inadmissible evidence.  United States v. Martin just decided by NMCCA is a case in point.  Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.

From legal precedent, we discern several, nonexclusive factors relevant to an assessment of whether “human lie detector” testimony was prejudicial: (1) the role of the Government counsel in initiating or furthering objectionable testimony (Kasper, 58 M.J. at 314); (2) the role of the defense counsel, particularly if it appears the defense initiated the testimony for strategic reasons (United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999)); (3) the defense’s failure to object or request cautionary instructions (United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999)); (4) whether the witness has been asked for specific conclusions or their opinion about the truth or falsity of another’s statements or allegations, or about whether a crime occurred (United States v. Anderson, 51 M.J. 145 (C.A.A.F. 1999); United States v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998); United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995)); (5) whether the testimony in question is on a central or peripheral matter (Kasper, 58 M.J. at 314; United States v. Robbins, 52 M.J. 455 (C.A.A.F. 2000); Birdsall, 47 M.J. at 404); (6) whether the trial was before members or by military judge alone (Robbins, 52 M.J. at 455; United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996)); and (7) the remedial action, if any, taken by the military judge. United States v. Eggen, 51 M.J. 159 (C.A.A.F. 1999). See United States v. Jones, 60 M.J. 964, 969 (A.F.Ct.Crim.App. 2005). While the trial was before members and while Cpl AI was asked specifically whether he believed his wife was lying – the central issue in this case – we are not convinced that the error had an unfair prejudicial impact on the member’s deliberations.

 

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

If the vaunted FBI examiners can make errors, then surely the examiners at USACIL, DCFL, and similar “labs” can have problems.

One of the underlying issues may be that examinations for law enforcement purposes are not “blind.”  What do I mean by that?  Go back and look at a few examinations you’ve seen for your case recently.  When the samples are submitted for testing the field agent normally submits a statement or outline of the case.  Essentially, they are telling examiners the result they want–the evidence matches the suspect.  See comments here.  I know I talk about this frequently–the confirmation bias phenomenum–but here is my evidence Prof’s thoughts on how the manner in which samples are submitted, and tested, can lead to the potential for a flawed result.

Commentators have identified bias as a serious problem in the forensic setting. As one commentator noted: “To the extent that we are aware of our vulnerability to bias, we may be able to control it. In fact, a feature of good scientific practice is the institution of processes—such as blind testing, the use of precise measurements, standardized procedures, statistical analysis—that control for bias.” A 1996 National Academy of Sciences report on DNA testing recommended that laboratory procedures “be designed with safeguards to detect bias and to identify cases of true ambiguity. Potential ambiguities should be documented.

Keep in mind that internal quality assurance reviews do not solve this potential problem.  The incentives for the QA examiner are no different than the initial examiner.  Some of you may remember from quite some years ago the Brooks AF drug lab scandal.  This involved a blind negative sample submitted by AFIP, which was reported by the laboratory as positive for a controlled substance.  I remember a case where the female client’s sample was reported positive for a controlled substance.  It was not until the case reached an adsep board and we got “discovery” that we noticed that the testing data showed the presence of male DNA in the sample.  The government’s expert testified that the result was correct, but that it must have been contaminated somewhere in the collection and testing process.  Despite this the command persisted in going forward to a finding of no misconduct.

Here is a piece from Marc Green, about how these human factors mentioned above can affect the reliability of a forensic test result.  Whereas the FBI describes the handwriting methodology.  They have this interesting statement.

The FBI Laboratory has not established a specific number of “points” or characteristics needed to identify a questioned writing as having been prepared by a particular individual. In order for a forensic document examiner to identify an individual as having prepared a questioned writing, agreement must exist between significant characteristics in the questioned and known writing with no significant differences. The examiner must explain any exceptions.

Yes, there is a wide degree of subjectivity.  See here for a discussion of the points issue.  Prof. Jennifer Mnoonkin writes here on fingerprints.

The point here is that you yourself should not engage in your own blind confirmation bias–which is to accept without examination the findings of a forensic examination.  As several writers point out, there may be quite a bit of other evidence in your case which goes to prove the accused’s guilt, and that the forensic examination is merely icing on the cake.  But in close cases it’s worth a read to peel the onion on forensic tests and reports.  Certainly the research and questions about the reliability of forensic testing may well help lay a foundation for expert assistance.  There may be support for what it is the expert is going to do for the defense.

The Navy-Marine Corps Court of Criminal Appeals recently, in United States v. D.W.B., __ M.J. ___ (N-M Ct. Crim. App. 2015), had to decide “a complex and controversial topic: the admissibility of a witness’s testimony regarding memories recovered through a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR).”  Slip op. at 2.

BLUF:  the military judge did not abuse his discretion in concluding that KB’s testimony was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.

In Coker v. Georgia, 433 U. S. 584 (1977), the Supreme Court held that the Eighth Amendment bars the use of the death penalty as punishment for the rape of an adult woman, where there is no homicide.  The question was left open about a non-homicide rape of a child.

In Kennedy v. Louisiana the court had the opportunity to address the issue of a non-homicide child-rape.  The court held, that like the rape of an adult, a rape of a child cannot be punished by death.  While doing so, the court had this to say about child witnesses.

 There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. Atkins [Atkins v. Virginia536 U. S. 304 (2002)] at 321. See also Brief for National Association of Criminal Defense Lawyers et al.as Amici Curiae 5–17.  Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is “strong evidence that children, especially young children, are suggestible to a significant degree—even on abuse-related questions”); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children’s True and False Reports of Body Touch, 12 Child Maltreatment 60, 61–66 (2007) (finding that 4- to 7-year-olds “were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview”).

Kennedy v. Louisiana, 554 U.S. 407 (2008).

The issue of false memory and false memory syndrome has been raised in connection with Russell Strand’s “new” approach to interviewing sexual assault complainants.  He calls it the Forensic Experiential Trauma Interview (FETI).

Here are some helpful links to professional policies relevant to recovered memory.

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision.  This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective.  But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases.  The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

The victim’s] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person’s memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten.

United States v. Grier, ARMY 9700651, 1998 CCA LEXIS 589, 19-20 (A.C.C.A. Dec. 11, 1998)(Johnston, J., dissenting).

It has been some time since I’ve had a case where it was necessary to have “cell tower” evidence to “locate” the client.

Here is an interesting piece in The New Yorker.

On May 28th, Lisa Marie Roberts, of Portland, Oregon, was released from prison after serving nine and a half years for a murder she didn’t commit. A key piece of overturned evidence was cell-phone records that allegedly put her at the scene.

In What Your Cell Phone Can’t Tell the Police, June 2014.

 

“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012).  Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week.  I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity.  Without going in to all of the facts, here are a few I thought relevant.

The CW had dropped her phone in the bath tub and it was no longer available for forensic examination.  In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in.  I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.

  • As usual CID never took a forensic copy of the cellphone.
  • There were some discrepancies with other information.

The nature of my approach was initiated from a number of worth-the-read pieces.

“Because social media is often stored on remote servers, is accessed through unique interfaces, can be dynamic and collaborative in nature, and is uniquely susceptible to alteration and fabrication, evidentiary standards developed for other types of electronically stored information [ESI] may not be adequate.”

H. Christopher Boehning & Daniel J. Toal, Authenticating Social Media Evidence, N.Y.L.J., Oct. 2, 2012, at para. 4.

See also, Colin Miller & Charles White, The Social Medium: Why the Authentication Bar Should be Raised For Social Media Evidence. 87 TEMPLE L. REV. (ONLINE) 1 (2014).

Laird C. Kirkpatrick, § 9:9 Authenticating email, social media, web pages, text messages, instant messaging, electronic signatures.  GW Law School Public Law and Legal Theory Paper No. 2014-60.

In addition to the case law and the facts, I also introduced into evidence four (of about nine) applications that can be downloaded to a cellphone or tablet and from which you can fake or alter a text message are stream of texts.  In another case I had also presented evidence of similar apps to create fake emails from you.  Here is just one – iphonefaketext

The need for authentication arises in this context because an electronic communication, such as a Facebook message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged in to their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. See, e.g., Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162 (2010).

State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011).

Professor Colin Miller has  published two timely and important  essays related to the introduction of social media evidence for its truth.

Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay,  71 Wash. & Lee L. Rev. Online 180 (2014). Here is the abstract:

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence, Temple Law Review Online (2014) (with Charles White). Here is the abstract:

Professor Miller uses recent examples of “social media evidence” to argue that, given the current technological and social climate, a more stringent authentication standard must be developed and used.

If a witness testifies at trial the traffic light was red, the accused may ask if they told the police officer the light was green.  And, depending on the answer the accused may offer extrinsic evidence of the inconsistency.  This is a clear prior inconsistent statement.  Usually there is no trouble identifying the issue.  But what happens if the witness says I don’t remember, or is vague, evasive or something else?

The NMCCA has an unpublished opinion in United States v. Corcoran, which should be read for a fuller and better reminder of when a witness may be impeached with a prior inconsistent statement, and most importantly when extrinsic evidence may be offered.

In United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007). The court talked about the process of impeachment by prior inconsistent statement.  It is a tool to question the witness and “By showing self-contradiction, the witness can be discredited as a person capable of error.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983). M.R.E. 613(b) allows extrinsic evidence of a prior inconsistent statement if the witness has been first given a chance to explain or deny the statement.  Keep in mind that there can be no extrinsic evidence if the witness admits making the prior inconsistent statement.  United States v. Gibson, 39 M.J. 319, 324 (C.M.A. 1994).

However, if the witness denies the statement or – and here is the often missed opportunity – the witness says they can’t recall or equivocates, then , extrinsic evidence may be admitted, but only for impeachment. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (“whether testimony is inconsistent with a prior statement is not limited to diametrically opposed answers but may be found as well in evasive answers, inability to recall, silence, or changes of position”).  See also, United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005).

In Corcoran, it appears:

First, here, as in Harrow, “the military judge appears not to have understood that an inability to recall or a ‘non-responsive’ answer may present an inconsistency for purposes of M.R.E. 613.” Id. at 200.

Second, the defense counsel properly confronted BNS with this prior statement and gave her an opportunity to explain or rebut it. BNS’s denial that she remembered making this statement to Lieutenant Keck was, for MIL. R. EVID. 613 purposes, sufficient to open the door for extrinsic evidence.

Huuum, while discussing the special findings issued in the case – a separate issue – the NMCCA reminded all of a well known axiom:  Military judges are presumed to know the law and to follow it absent clear evidence to the contrary.  United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007).

Despite the clear error, as often happens the NMCCA found no prejudice to Corcoran’s conviction.

Professor Imwinklried has an excellent article advocating banishment of the ban on extrinsic evidence to impeach under Federal (Military) Rule of Evidence 608(b) (MRE).  Prof. Imwinkleried questions why the ban is necessary and may in fact encourage perjury on the part of a testifying witness.

Professor Kevin Cole has an excellent summary of the article at CrimProfBlog.

Edward J. Imwinkelried, Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction, UC Davis Legal Studies Research Paper No. 396, University of California, Davis – School of Law, September 14, 2014.

Basically, a witness may be confronted about prior acts of untruthfulness even though there is no prior conviction for those acts. For example, the witness may be challenged that they lied on a SF 86 (security clearance questionnaire) or enlistment document – both of which are statements made under oath. If the witness admits the lie you are good to go. But what if the witness denies the lie, can you produce the document or some other evidence of that lie? Likely you can’t if MRE 608(b) is applied according to its language.

However, Prof. Imwinkleried identifies three approaches taken by federal appellate courts. At 9, 21.  Some courts allow the witness to be confronted  with documentary proof of a lie when the witness can authenticate the document. Other courts allow extrinsic evidence when the evidence is a formal judicial finding such as an Article 15 record.  Other courts (including the military), especially in sexual assault cases allow cross-examine the complainant about prior false rape accusations; and if the complaining witness denies the prior false complaints, the accused may introduce extrinsic evidence.

In cases I have done, the military judge has allowed all three options, depending on the nature of the extrinsic evidence. In essence the military judge has taken a MRE 403 balancing approach – the approach Prof. Imwinkleried advocates in lieu of a complete ban. Prof. Imwinkleried characterizes the lower courts as “increasingly ignoring” the plain language of the rule and the drafter’s intent. At 8. Prof. Imwinkleried does note that in Nevada v. Jackson, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2014) the Court made note of the ban, but in dictum, they said “[t]he constitutional propriety of this rule cannot be seriously disputed.” Id. at 1993, 186 L.Ed.2d 67.” Of course that does not address the serious dispute found among the lower court cases.

The military courts appear to give some credence to the federal courts that do not completely ban extrinsic evidence and apply a balancing test. See e.g., United States v. Banker, 15 M.J. 207 (C.M.A. 1983).

As a side note, the courts approve of impeachment through specific contradiction. See United States v. Welker, 44 M.J. 85, 89 (C.A.A.F. 1996).

Further, counsel should also be attuned to the idea that impeachment may be offered under various rules, even when one or more other rules ban the extrinsic evidence. See e.g., United States v. Bahr, 33 M.J. 228 (C.M.A. 1991).

Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise.  Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

These are words many don’t wish to hear but they are legally, and more importantly medically true.  Unfortunately military trainers persist in teaching false information about “one drink.”  This is not old news.  A number of years ago the Air Force had a sex scandal and came out with new training.  As a result of that training and other erroneous training, the Department of Defense was forced to come out with this little bit of accurate information.

 dd

       I got this off the web for www.sapr.mil back then, it ain’t available anymore on the current website – I wonder why?  The cynic tells me it isn’t helpful to the government meme.  Here is a link to the rest of the image.