Articles Posted in Evidence

I have had cases of the reluctant witness, typically the spouse physical abuse cases, to United States v. English (ACCA 2018) was not a surprise in terms of the issue.  The alleged victim was refusing to cooperate in the prosecution so the prosecution tried to introduce prior statements.  The prosecution uses Mil. R. Evid. 803(5), the rule about prior recollection recorded.  In English the prosecution and the judge erred.  The prosecution needed to check three foundational boxes–but they didn’t according to the ACCA.

(1) the recorded statement contains matters of which a witness once had knowledge but now has insufficient recollection to enable the

witness to testify fully and accurately;

From friend BW.

State commission calls blood-spatter testimony in murder case ‘not … scientifically supported’ By Pamela Colloff, ProPublica, July 24, 201

 An influential state commission said the blood-spatter analysis used to convict a former Texas high school principal of murdering his wife in 1985 was “not accurate or scientifically supported” and the expert who testified was “entirely wrong.” The findings of the Texas Forensic Science Commission, a national leader in forensic science reform, called into question the conviction of Joe Bryan, who has now spent more than 30 years in prison. Bryan was the subject of a two-part investigation by ProPublica and The New York Times Magazine in May that questioned the accuracy of the bloodstain pattern analysis used to convict Bryan, as well as the training of the experts who testify in such cases.

My first GCM involved eyewitness identification and a motion to suppress based on an improperly suggestive show-up when the client was arrested.  He was handcuffed in the back of the police car and the armed robbery victim was brought to the police car and asked ”is that him” or words to that effect.  Since then I’ve not had a case where there was a serious question of identification.  That said, Prof. Miller, one of my favorite evidence bloggers has this piece.

Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can’t Remember Making Them?

He first notes that misidentification contributed to 75% of exoneration cases.  Then he moves to Mil. R. Evid. 801 and how an out of court identification may not he hearsay.

During trial, the defense counsel make many decisions; sometimes there is an objection to evidence, sometimes not.  How the appellate courts deal with allegedly inadmissible evidence depends on whether there was an objection at trial.

If there is an objection the appellate court looks to see if the evidence was objectionable, whether the judge abused his discretion in overruling the objection, and if the error was harmful or harmless (prejudice).

If there is no objection the appellate court may apply the plain error rule.

Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand.  Here is a list of the most recent CAAF actions.

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

Let’s take a look at United States v. Criswell, a case decided by the Army adverse to the appellant, and now pending review at CAAF, on the following issue.

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

The Air Force Court of Criminal Appeals (AFCCA) has issued an interesting en banc (5-3) opinion in United States v. Hamilton, 76 M.J. ___ (A. F. Ct. Crim. App. 2017), about victim impact evidence or statements.

The accused pleaded guilty to the possession and distribution of child pornography.  On sentencing, as we often see in these cases, the prosecution introduced unsworn statements of the victims, all of which predated the accused’s date of offenses.  For those who haven’t been exposed to these statements, generally, they review the abuse that occurred at the time the video or image was taken and the subsequent life and health effects on the victim.  We know that courts allow such information because of the idea that a victim is re-victimized each time a person views or distributes the images–it’s essentially an ongoing crime.  Slip op. at 7-8.

I think there are several takeaways for practitioners.

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence.  The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

As you know, Military Rule of Evidence 1102 provides that,

Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

So, here is some relevant activity regarding possible changes to the federal rules of evidence.

The CAAF daily journal for 15 June 2017 has this entry:  No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of Appellee’s petition for reconsideration of this Court’s decision, United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), it is ordered that said petition for reconsideration be, and the same is, hereby denied.

To refresh.

CAAF decided the Army case of United States v. Hukill, 76 M.J. 219, No. 17-0003/AR (slip op.), on Tuesday, May 2, 2017. A short opinion reiterates the rationale of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) .  “[T]he use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Slip op. at 6. CAAF reverses the decision of the Army CCA that found Hills inapplicable in judge-alone trials, reverses the appellant’s convictions, and authorizes a rehearing.