Articles Posted in Supreme Court

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.)

For those interested in the history of the Constitution and its judicial interpretation, the George Washington Law Review has a:


edition.  Volume 80, No. 5, includes:

A Dialogue on Statutory and Constitutional Interpretation
The Honorable Antonin Scalia & John F. Manning
80 GEO. WASH. L. REV. 1610 (2012)


A Dialogue with Federal Judges on the Role of History in Interpretation
Amanda L. Tyler, Moderator, The Honorable Frank H. Easterbrook, The Honorable Brett M. Kavanaugh, The Honorable Charles F. Lettow, The Honorable Reena Raggi, The Honorable Jeffrey S. Sutton & The Honorable Diane P. Wood
80 GEO. WASH. L. REV. 1889 (2012)

Professor Friedman has posted various amicus pleadings on his blog here.  He lists one not currently on the SCOTUSBlog for the case.  A little more here with Supreme Court cases with potential impact on military justice.  Professor Friedman does note as to his own filing:

There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.

SCOTUSBlog has a petition for the day which may have some military justice impact if granted.

Hart v. United States.  The response is due 29 September 2011.

Here is the QP:

Whether 18 U.S.C. § 2422(b) – which makes it a crime "to knowingly persuade, induce, entice, or coerce any individual who has not attained the age of 18 years to engage in… any sexual activity for which any person can be charged with a criminal offense" – requires a jury to come to a unanimous verdict on a single, specific underlying criminal offense for which the defendant could be charged.

Here’s a possible hook into current military practice (and I think you can substitute the two-thirds for the unanimous).  Does this set up a Walters–like issue?   I’ll cite from United States v. Trew, 68 M.J. 364 (C.A.A.F. 2009), a case I had at trial.

When the phrase “on divers occasions” is removed from a specification, the effect is “that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.”  United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005).  “If there is no indication on the record
which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review.  United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F. 2003).”  United States v. Wilson, 67 M.J. 423, 428 (C.A.A.F. 2009).

While it’s is not a “divers occassions” the charge does allege different, and thus divers methods, of violating the statute.  What if some members thought my client was enticing and others thought coercing, and they all voted guilty by two-thirds, but two thirds didn’t agree on the entice or the coerce?

The second QP asks about double jeopardy concerns for a conviction on both 18 U.S.C. § 2422 and 18 U.S.C. § 2251.  I have one of these cases and I’m not sure this would be applicable to court-martial when charged under Article 134, UCMJ, depending on how it was charged.

See prior petitions of note.

White v. Illinois, a crime lab report case will be argued 6 December 2011.

SCOTUSBlog reports their “petition of the day,” which is a criminal evidence case with potential relevance to military justice practitioners – Childers v. Florida, if granted.

Issue two is:

2. Should the Court resolve a conflict in the Circuits and clarify whether its Confrontation Clause
precedents, Olden v. Kentucky, 488 U.S. 227 (1988), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and
Davis v. Alaska, 415 U.So 308 (1974), permit a trial court to preclude cross-examination into the bias of a key witness on the ground that the trial court has allowed some cross-examination into bias.

Other cases to follow:

Williams v. Illinois.

Missouri v. Frye, Lafler v. Cooper.  Each of these cases deals with IAC at the time of pretrial negotiations, as does Premo v. Moore, which was decided 19 January 2011.

The President intends nominating Elena Kagan, the current Solicitor General of the United States, as the next (and 112th) justice of the United States Supreme Court, according to the Washington Post.

In replacing Justice John Paul Stevens, Obama would also be breaking with tradition. Every other member of the court is a former federal appeals court judge, and Kagan has never served in the judiciary. The last time a non-judge was appointed was 1972, when President Richard M. Nixon nominated William H. Rehnquist and Lewis Powell in the same year.

Thanks to SCOTUSBlog here is a link to a new Supreme Court research tool.

The Supreme Court Database.

The Supreme Court Database is the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court. The Database contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2008 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices.

SCOTUSBlog has provided this excellent summary of panels over the next few weeks which will address past and pending issues before the court.  Not all of the issues may be relevant to day to day lawyering in a court-martial setting, but worth considering.  A reminder that SCOTUSBlog is the best website out there with relevant and timely information about what is going on at the Supreme Court.  Overall the bloggers make an effort to be non-partisan and minimize the advocacy – which in today’s shouting head media context is very good.  SCOTUSWiki is a further good source for information and arguments in pending Supreme Court cases where you may have a similar issue pending at trial, or where you are looking for litigation ideas.

Weds., Sept. 16 at 4 p.m.: The American Bar Association will host “On the Docket: The Legal and Media Worlds Look at the Supreme Court 2009 Term” at the Newseum. Tom Goldstein will be a panelist. Click here for more information and registration details.

Thurs., Sept. 17 at 10:30 a.m.: The Cato Institute will host a Constitution Day symposium, “The Supreme Court: Past and Prologue—A Look at the October 2008 and October 2009 Terms.” Click here for more information and registration details.

Friday, Sept. 18 at 9 a.m.: The Yale Law School Supreme Court Advocacy Clinic and the Yale Law Journal Online will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process,” at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process; Lyle Denniston will speak on the first panel. Click here for more information and registration details.

Thurs., Sept. 24 at 12 p.m.: The American Constitution Society will host a panel discussion moderated by Tom Goldstein at the National Press Club where a diverse group of experts will offer their insights on the Supreme Court Term that begins October 5. Click here for more information and registration details.

Mon., Sept. 28, at 6:30 p.m.: The National Constitution Center will hold a discussion about the changing court and the major cases already awaiting its attention when it reassembles on the first Monday in October. Lyle Denniston will be a panelist. Admission is $9 for members, $15 for non-members, and $7 for students and teachers. Reservations are required and can be made by calling 215.409.6700 or clicking here.