Evidence Category Archives — Page 13 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Blazier trail

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

You may be familiar with the quote:

In every case involving [state your poison], we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962)(emphasis added).

And you may be familiar with this research.

I object!

December 25, 2010 | The Law Office of Philip D. Cave

Waive it or raise it at work – and at a court-martial under the UCMJ.

Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

Federal Rule of Evidence change

December 1, 2010 | The Law Office of Philip D. Cave

An important change to the Federal Rules of Evidence begins today. That means, absent Presidential action, the rule will take affect in the military no later than 18 months from now. This is a significant change requiring the prosecution to corroborate statements against penal interest.

On December 1, 2010, a new amendment to the Federal Rules of Evidence takes effect. The rule concerns the admission of statements against interest under FRE 804(b)(3) has been amended so that the corroborating circumstances requirement for admission of a declaration against interest applies to statements against penal interest introduced by the government as well as those by the defendant in criminal cases. This requirement previously applied to statements introduced by the defendant.

See Mil. R. Evid. 1102. Thanks to FederalEvidenceReview for the reminder.

Impeachment

November 10, 2010 | The Law Office of Philip D. Cave

Professor Colin Miller uses an Alabama case to remind us that a prior misdemeanor conviction is not admissible under Rule 609(a).

Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is "no."

The prosecution had argued that the accused’s testimony had “opened the door.” The appeals court also rejected that basis for admission. Of interest though, for trial counsel, and for defense counsel to be looking out for, was this part of the court’s opinion.

A quick reminder for “documents” cases

November 4, 2010 | The Law Office of Philip D. Cave

My good friend Bill Cassara and I have done a lot of BAH/TCS fraud cases at court-martial under the UCMJ over the years. Typically the case involves a lot of documents from DFAS. The prosecution then calls a witness from DFAS to lay a foundation for the documents and then has the witness testify as to what the documents mean in terms of monies claimed and paid compared to the legal entitlements. Because these documents are of many pages the witness typically prepares a chart which summarizes the documents and the bottom lines. There is nothing wrong with that so long as the underlying documents are admissible (usually as business records and documents prepared and submitted by the accused), the chart is an accurate representation of the documents, and the witness who prepared the chart or summary is available for cross-examination.

The case of United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. Feb. 8, 2008) (Nos. 06-3088, 06-3089, 07-3016), noted by federalevidence.com, reminds us of this point.

Cross-examination might expose errors or inconsistencies in the chart. At which point the parties can refer to the original documents if necessary. Assuming the errors or inconsistencies are identified and cross-examined on the testimony is then judged as to its weight not admissibility.

Eyewitness accounts and testimony

October 17, 2010 | The Law Office of Philip D. Cave

MAJ Hasan’s UCMJ Article 32 hearing and likely court-martial is drawing and will continue to draw lots of attention — of course, duh. But just as we have seen in other high profile cases there are opportunities for what I call teachable moments. Here are two from the item posted by CAAFLog about the witness who was ordered to destroy a video of the shooting he made on his cellphone. Forget the rhetoric about whether or not the Army was engaged in a cover-up.

1. Contemporaneous video’s and photos can provide vital evidence for both sides.

Nixon said he remembered Hasan because of “his stature and just how he composed himself — stoic.”

Public records exception

October 7, 2010 | The Law Office of Philip D. Cave

“Now what I want is, Facts.. . . Stick to Facts Sir!” (Charles Dickens, Hard Times, p. 1, Oxford World’s Classics, 1998.)

Evidence may be admissible under Mil. R. Evid. 803(8) as an exception to the hearsay rule. Prof. Colin Miller reminds us that the exception is intended to cover recorded facts, not opinions.

Authenticity

September 30, 2010 | The Law Office of Philip D. Cave

Here’s a reminder about authenticating emails based on a posting from Prof. Colin Miller at EvidenceProfBlog. To paraphrase Prof. Miller:

And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

Diamond petition filed

September 15, 2010 | The Law Office of Philip D. Cave

The CAAF Daily Journal for 14 September 2010 notes the filing of a petition for review by John M. Diamond.

Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial.

According to court documents, witnesses for the prosecution repeatedly testified that Theer did not cooperate with the investigation and a prosecutor told the jury in closing arguments that Theer invoked her right to a lawyer when a co-defendant was arrested.

Urinalysis cases

September 14, 2010 | The Law Office of Philip D. Cave

In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz. Note Blazier is still undecided. In the Air Force case the defense did not object, in the Navy case the defense did object.

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.