Articles Posted in Evidence

Several relevant items for you this weekend.

Orin Kerr has this post at The Volokh Conspiracy. In part:

Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original.

This two-step procedure raises an interesting puzzle for consent doctrine. What happens if a target consents to a computer search, the agents quickly make a copy, and then the target revokes consent before the image is searched? Everyone agrees that the officer can’t search the target’s own computer after consent was withdrawn. But can the officer search the copy? Is the copy now the government’s to search regardless of the suspect’s revocation, or should the revocation of consent cover both the original and the copy?

h/t CrimProfBlog.

This is not an uncommon situation in military cases.  I suspect we all have cases where the computer is taken and imaged, and then we send in a notice of representation and notice of withdrawal of consent.

And see also, Edward J. Imwinkelried (University of California, Davis – School of Law) has posted The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence IProceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming) on SSRN.

 

The NMCCA has issued an interesting published opinion on a government appeal.

United States v. Rios.  From the opinion.

  • The appellee is currently facing trial by special court-martial on numerous charges regarding larceny from the Marine Corps Exchange (MCX) on Camp Pendleton, California.
  • He is alleged to have conspired with his wife to commit larceny[.]
  • Among the evidence the Government seeks to offer to prove the appellant’s guilt is Mrs. Rios’ testimony regarding her husband’s involvement in the purportedly criminal activity. Mrs. Rios’ attorney, however, informed the military judge that his client intends to invoke her privilege (spousal incapacity) under MILITARY RULE OF EVIDENCE 504(a), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.).
  • The Government sought a preliminary ruling on whether the appellee’s wife could be compelled to testify under the exception found in MIL. R. EVID. 504(c)(2)(D). The military judge ruled that the appellee’s wife may validly invoke the privilege under MIL. R. EVID. 504(a), and that the exception found at MIL. R. EVID. 504(c)(2)(D) in no way limits that invocation.
  • The Government now appeals that ruling under Article 62, UCMJ. We have thoroughly reviewed the record of trial and the briefs submitted by the parties. Following that review and our consideration of all the materials before us, we conclude that the appeal is properly before us and find no error in the military judge’s findings of fact and conclusions of law.

Interestingly the opinion does not address the wife’s Fifth Amendment privilege or immunity.  Perhaps that was not an issue at the time.

Worth-the-read is A PRELIMINARY DRAFT OF Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence, is the source for the ABA article I just posted about ancient documents.

There is another proposal in the Draft relevant to technology.  The drafters are suggesting changing FRE 902, which as we know will likely change MRE 902 18 months later (absent action from the Prez.).

902 (13) Certified Records Generated by an Electronic Process or System.  A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

902(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital 10 identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

This is worth-some-study.  On the surface, it may well be an appropriate rule appropriately limited.  My concern is abuse by prosecutors–more likely witnesses–when it comes to certain types of evidence.  I’m sure we are all aware of the free software programs downloadable to your cell phone which allow the creation of fake texts, emails, twits, and such.

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.

The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.

A committee report (PDF) said the rule “has always been questionable” but it has been tolerated because it is infrequently used, and usually in cases where there is no other evidence on point.

Now, the abundance of electronic documents creates a strong likelihood that the ancient documents exception will be used much more frequently in coming years, according to the report by U.S. District Judge William Sessions III of Vermont, who chairs the advisory committee on evidence rules.

“Many forms of [electronically stored evidence] have just become or are about to become more than 20 years old, and there is a real risk that substantial amounts of unreliable ESI will be stockpiled and subject to essentially automatic admissibility under the existing exception,” the report said.

From the ABA Journal, which 20 years from now will automatically be admissible as evidence, absent a rule change.

There are some interesting articles for military justice practitioners in the Summer 2015, MLR.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
3.  By Major Robert E. Murdough.pdf
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
4.  By Major Michael Zimmerman.pdf
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers
5.  By Major Malcolm Wilkerson.pdf
A Better Understanding of Bullying and Hazing in the Military
7.  By Major Stephen M. Hernandez.pdf

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance.  The recent case of Nappi v. Yelich, from the Tenth highlights that.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.”  Davis v. Alaska, 415 U.S. 308, 315 (1974).  It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.”  Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . ..  To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects.  Davis, 415 U.S. at 316.  But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.”  Id. at 316‐17.

The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent.  See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

And for the sexual assault case:

In Olden v. Kentucky, defendants were prosecuted for, among other things, rape; the defense was consent and that the victim had a motive to lie to conceal her extramarital relationship.  488 U.S. 227, 228‐30 (1988) (per curiam).  The state court prevented defendant from exposing this alleged motive to lie, but the Supreme Court concluded that this ruling “failed to accord proper weight to petitioner’s Sixth Amendment right to be confronted with the witnesses against him.”  Id. at 231 (internal quotation marks omitted).  Here, as in Olden, the testimony of a witness whose motive was at issue was “central, indeed crucial, to the prosecution’s case.”  Id. at 233. “If the purpose of cross‐examination is to explore more than general credibility, the subject of inquiry is not collateral.”  Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir. 1979).

Are you at a base overseas?

Do you have foreign national witnesses or foreign language documents as evidence in your case?

United States v. Aifang Ye, No. 12-10576 (9th Cir. 2015)

may be of interest to you.

The court held that the defendant’s argument that the government’s failure to call certain translators as witnesses at trial violated her rights under the Confrontation Clause is foreclosed by precedent.

Sayeth a headnote.  Factually it appears:

Prior to trial, Ye and Zhenyan objected that it would violate the Confrontation Clause of the Sixth Amendment to admit statements they had made to DHS unless the USCIS Language Line translators who assisted them were called to testify. After considering testimony and other evidence regarding the nature of USCIS’s translation services, the district court overruled the objection. Ye argues on appeal that the district court erred by subsequently admitting the translated statements at trial.

 

In United States v. Nazemian, 948 F.2d 522, 525–28 (9th Cir. 1991), we held that, as long as a translator acts only as a language conduit, the use of the translator does not implicate the Confrontation Clause. Ye argues that Nazemian is inconsistent with the Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004), [and its progeny].

As Ye correctly concedes, however, we already have held that Nazemian remains binding circuit precedent because it is not clearly irreconcilable with Crawford and its progeny.

Ye alternatively argues that the district court misapplied Nazemian in admitting the translated statements here.

The “Nazemian [test] requires analyzing four factors:

“(1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter’s qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.”

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.