Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection. Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments. This is a particular bugaboo of my when LE…
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…
What Happens in the Jury Room Stays in the Jury Room . . . but Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b), Amanda R. Wolin, 60 UCLA L. Rev. 262 (2012).
Leaks from Members (or sometimes military judges) occasionally give rise to appellate litigation. Here is an interesting piece on federal evidence review: Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror…
Federal Evidence Review references: In conspiracy and arson trial, reversing and remanding when trial court failed "to make adequate inquiries regarding news stories" that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore "whether any juror heard any of the information" and its impact…
SCOTUSBlog notes two new petitions with potential impact on a court-martial practice under the UCMJ. Title: NIBCO, Inc. v. Rivera Docket: 10-383 Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither…
The accused is charged with indecent assault on a complaining witness and rape on another complaining witness. Member: Sir I’m the unit victim advocate. Individual voir dire continues blah, blah, blah. Def: The defense objects on implied bias and liberal grant mandate. MJ: Explain why please. Def: Blah, blah, blah.…
(Thanks to Volokh Conspiracy) we have Sanford v. United States, No. 08-5402 (D.C. Cir. 13 November 2009), in which the court held that a SPCM with less than six members is not unconstitutional. The court notes that: This court has recognized that the standard of review in non-custodial collateral attacks…
Barbara Rich Bushell, Identifying Leaders, 21(5) The Jury Expert, Sept. 2009. When I initially read this piece I did not see any relevance to a military Members panel (the jury). The military “foreperson” is preselected, and will be automatically selected after challenges – it’s the senior Member by rank and…
Here is a CNN piece on United States v. Smith. Dog handler appeals conviction in Abu Ghraib case. He’s already served the time, but lawyers Thursday argued to clear his name as onetime U.S. Army Sgt. Michael Smith appeals a conviction for the torture of detainees once held at the…