Articles Posted in Evidence

Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective,

By D. Kim Rossmo and Joycelyn M. Pollock.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

When a party objects to testimony or documents they should state “I object” and cite the evidence rule or principle and nothing else. You may be tempted, but don’t make a speaking objection.

United States v. Gurfein, NMCCA 2019, is an example of why speaking objections are improper and can cause problems. I have had trial cases where I’ve had to cut trial counsel off from making a speaking objection in front of members. I have appellate cases where the counsel and military judge engaged in a discussion of the objection (sometimes lengthy and detailed) in front of the members–this is improper.

Defense counsel–shut trial counsel down when they make speaking objections in front of members. I know judges want to save time and not inconvenience members, but you have a client who may be adversely affected by what they hear.

A case to look out for.

United States v. Frost, No. 18-0362/AR

Issue: Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.

I have always argued for full and early discovery in court-martial cases.  How can you defend someone when discovery is delayed or held-back.  And how can you make a properly considered judgment on a PTA or not.

“The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:

George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted.

The answer is possibly, but it requires some very specific analysis using the Reynolds test.  The Air Force Court of Criminal Appeals has decided United States v. Hyppolite, II, where this issue arose.

In this case, the prosecution sought to use evidence of different allegations of a sexual offense to show that, “Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.”

“The crux of Appellant’s position throughout trial and on appeal is that the sexual conduct alleged in each specification was separate and distinct and must stand on its own. Appellant contends that the allegations were not sufficiently similar to show a common plan and that allowing evidence of one charged offense as evidence of a separate charged offense was tantamount to allowing the factfinder to consider evidence of Appellant’s propensity to engage in sexual misconduct. Appellant, citing United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F 2016), renews on appeal his claim that the military judge misapplied Mil. R. Evid. 404(b) and Mil. R. Evid. 403 and improperly allowed charged offenses to be used as propensity evidence to prove other charged offenses?

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.

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