Articles Posted in Evidence

“[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.

The older the alleged other acts the worse the case for admission of MRE 404(b) matter in my view.

Trial counsel will often seek to admit prior bad acts through MRE 404(b).  The UCMJ does not have rules of evidence in the statute, the rules of evidence are published by the President using his power to make court-martial rules and procedures.  The rules of evidence (current as of 1 Aug. 14) are published in the Manual for Courts-Martial.

As I have routinely cautioned, be alert to and challenge “talismanic incantations” of MRE 404(b) admissibility that merely cites the rule.  You should require the trial counsel to cite which specific exception(s) they rely on, then be precise how the supposed other acts will actually serve to make that or some other critical fact provable.

The prosecution cannot offer prior bad acts just to show, and which merely show, a bad person who may have some predisposition to commit the crime.  United States v. Humpherys, 57 M.J. 83, 90-91 (C.A.A.F. 2002).  This makes sense, profiling and propensity have rarely been a legitimate consideration for trials, except for military sexual assault cases.

Challenging, often through motions in-limine, such evidence should be a stock-in-trade for your military defense lawyer.  Under the UCMJ and Manual for Courts-Martial, as well as the various Army Court of Criminal Appeals rules, a military defense lawyer can file motions in advance of trial.  It is a good idea.  It is better to litigate the issues before the trial counsel prosecutor has a chance to have them mentioned in front of the members (the jury in civilian parlance).

If the evidence fails any of the three tests, it is not admissible.  United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992); United States v. Reynolds, 29 MJ 105, 109 (C.M.A. 1989).  The Reynolds test requires the prosecution show the evidence on the other crime reasonably supports guilt of that other crime (an opportunity for the defense to show how a trial within a trial may occur); that the other crime is supportive of the theory for its admission; and survive a MRE 403 balancing test.  See United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006); United States v. Yammine, (C.A.A.F. 2010).

When it comes to the relevance of a prior bad act it seems to me that a factor must be how close in time to the charged offenses.  If it is a prior bad act of distributing some drugs a few weeks before the alleged offense, then there is a proximity arguing for admission.  However, a distribution many years ago before joining the military is not proximate and should be considered inadmissible.  I do not say such an act is automatically or per se inadmissible.  And that’s the thrust of the court’s decision and analysis in United States v. Wallace, in which the Fifth noted the circuit law that remoteness may weaken probative value, but remoteness has never been held to be a per se bar for admission.  The court also cautioned that there was no per se rule of admission either.

Your military defense lawyer should also be aware that prior acts that resulted in a court-martial AND an acquittal might still be used in a later trial under MRE 404(b).  Read United States v. Tyndal, as an example.  I encourage clients to read along with me on the UCMJ, court-martial, and military sexual assault to be informed about their case.

Back to Reynolds, especially in sexual assault cases, but in all cases when balancing matters under MRE 403, reference to the “Wright factors” is helpful at the trial level and will allow for some deference to the military judge on appeal.  United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)(listing seven non-exclusive factors).  One of the specific factors is – temporal proximity – so it doesn’t just seem, it is.

So, it’s still a contextual analysis of the prior acts and how they may go to prove the current facts, without being more prejudicial than helpful.

Get your military defense lawyer to explain these issues, or if you need a case analysis get in touch with us.

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.