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
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
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
4. Open Issue (civil case):
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.)