Evidence Category Archives — Page 12 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Wikipedia as a reliable source

August 19, 2012 | The Law Office of Philip D. Cave

Well, I use Wikipedia for research. But, I use it “in some limited situations . . . for getting a sense of a term’s common usage." Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011), Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads” The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").).

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Impeachment by . . .

August 5, 2012 | The Law Office of Philip D. Cave

To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that

A statement is not hearsay if:

1. The declarant testifies and is subject to cross-examination about a prior statement.

2. The declarant testified under oath at a prior “hearing” or “or proceeding.”

Prior sexual assault allegations

July 30, 2012 | The Law Office of Philip D. Cave

In trial of defendant for sexually abusing two minors, the admissibility of evidence that victims had made false accusation of sexual abuse against others was admissible, not under FRE 403, FRE 412, or 608(b), but rather under the Sixth Amendment Right to Confrontation, in United States v. Frederick, 683 F.3d 913 (8th Cir. July 5, 2012) (No. 11-1546).

h/t federalevidence.com

We hold that the military judge improperly limited cross-examination of the prosecutrix by precluding defense questions concerning her diary, a prior false rape claim, and two prior false claims concerning her health. U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986); seeMil.R.Evid. 608(c), Manual for Courts-Martial, United States, 1984. We also hold these constitutional errors were not harmless beyond a reasonable doubt and require a rehearing. See generally Olden v. Kentucky, 488 U.S. 227, 233, 109 S. Ct. 480, 484, 102 L. Ed. 2d 513 (1988).

United States v. Bahr, 33 M.J. 228, (C.M.A. 1991).

Confinement and MRE 609(b)

July 30, 2012 | The Law Office of Philip D. Cave

Impeachment with conviction.

Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial. But if there were to be a prior conviction there may be some interpretation necessary. So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we go.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Eleventh Circuit sidestepped the most interesting issue in the case.

not exceptional hearsay

July 27, 2012 | The Law Office of Philip D. Cave

Military (Federal) Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

While the rule appears to allow a broad exception for hearsay, the Supreme Court of VA points out the narrowing language still has effect.*

It was him, I’m sure

July 20, 2012 | The Law Office of Philip D. Cave

Maybe not. There is quite a bit of research and anecdotal evidence to show that eyewitness testimony can be unreliable. Now New Jersey is in the frontline of making sure a jury is aware of the potential problems with eyewitness testimony. To quote the ABA Journal.

New jury instructions in New Jersey will warn that human memory is not foolproof and eyewitness testimony must be carefully scrutinized.

Set to take effect on Sept. 4, the new instructions follow a landmark ruling last year by the New Jersey Supreme Court that makes it easier for defendants to challenge the reliability of eyewitness identifications, the New York Times reports. The decision also required juries to be instructed on the variables that could lead to mistaken identifications.

b‘ware

July 20, 2012 | The Law Office of Philip D. Cave

The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

A greater “privilege” reminder

July 1, 2012 | The Law Office of Philip D. Cave

From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said:

The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without "full-scale" trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971). An excessively formalistic or technical approach to this rule may undermine these policy concerns in the long run. United States v. Herman, 544 F.2d [791,] at 797 [(5th Cir. Fla. 1977)].See generally Wright and Graham, Federal Practice and Procedure: Evidence § 5345 (1980). A failure to recognize and enforce the military expansion of this rule may have the same effect. 23 M.J. at 76.

United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(Sullivan, J., concurring).

I think it fair to consider Mil. R. Evid. 410 a form of privilege although not found in the 500 series of rules. Fourthamendment.com notes an interesting case about application of Fed. R. Evid. 410. In reading the case it appears the federal courts may take a more restrictive view of the rule compared to application of Mil. R. Evid. 410.

Evidence issues for 2012

January 4, 2012 | The Law Office of Philip D. Cave

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions

Confrontation Clause: More Notice and Demand Rules?

Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations

Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause

Circuit Split: Admission Of Pre-Miranda Silence

Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?

More Judicial Criticism of the “Inextricable Intertwinement" Theory

Rule Amendments: “Restyling” Federal Rules of Evidence

Pending Rule Amendment: FRE 803(10) – Absence of Public Record

Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

On item 8., which will depend on how the President “adopts” the restyling. Interesting that there may be issues surrounding implementation of the restyled rules.

The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.

Preservation of the issue

February 1, 2011 | The Law Office of Philip D. Cave

Thanks to federalevidencereview.com here is an interesting case about preserving the issue for appeal. In this case there was a pretrial motion and the judge denied the defense its requested relief.

The government claimed the plain error standard would apply, as at trial the defendant failed to preserve the issue for appeal.

The Tenth Circuit disagreed that plain error applied to the issue. The circuit noted that while the matter did not develop at trial, it had been the subject of a motion in limine by the defendant. The trial court rejected the motion in limine. The circuit noted a standard that applied in the circuit to whether a party’s actions were sufficient to preserve the issue for appeal. In doing so, the court noted FRE 103(a), which relieves a party from having to renew an object at trial if the court had previously made "a definitive ruling on the objection." FRE 103(a).