From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided…
There’s at least one federal judge who likes to enforce discovery where the prosecution has a – in my words – self executing duty to produce. Federal Judge Questions Prosecution Conduct in Ye Gon Case. “This is the second time in less than three months in a high profile case…
Are juvenile convictions subject to discovery and potential use at trial? — Yes. Mil. R. Evid. 609(d): Evidence of juvenile adjudications is generally not admissible under this rule. The military judge, however, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the…
A recent Ninth Circuit case highlights the importance of disclosing impeachment evidence and the consequences of failing to do so. The prosecutor requested a criminal history check on a key government witness. The prosecutor indicated he was unaware of the criminal history which was not disclosed to the defense. The…
D.C. Circuit remands case for district court to determine which company records, including from an internal investigation, were material to the defendant’s defense “and to protect against the public disclosure of material documents in a manner consistent with Thompson’s right to a fair trial,” in United States v. Thompson, __…
The prosecution of Senator Stevens highlighted problems with prosecutors who don’t comply with their Brady-plus obligations. Here’s another one. New Trial Granted Because of Prosecutor Misconduct: Mike Scarcella writes at Blog of the Legal Times that a D.C. Superior Court judge has granted a new trial to a man convicted…
This case could be very helpful to an accused overseas where the prosecution lets witnesses go PCS or off active duty prior to trial, with the idea that the deposition or Article 32, UCMJ, hearing testimony could be used. Note, this case doesn't talk about MLAT's. The government’s minimal efforts…
Here is a post from Legal Blogwatch: Here is a scenario that sounds like a law school exam question. It was after midnight when the client began to leave a series of six messages on the lawyer's answering machine. In the first, the client said that he knew the home…
Personally, from experience, I'm not sure they do. However, Judge Emmett Sullivan, of the D.C. for D.C. doesn't think so. Here is an item on The BLT: The Blog of LegalTimes, Judge Threatens Justice Lawyers With Contempt Over Detainee Documents, 13 March 2009. So-called Brady rules require prosecutors to hand…
Yesterday (090209) A.F.C.C.A. updated its online opinions. There are three worth reading for the trial practitioner. United States v. Curran, ACM 37185 (A.F. Ct. Crim. App. 22 January 2009). This is an interesting issue where the prosecution was allowed to introduce evidence on sentencing about the time and effort involved…