Is how one of my favorite evidence blog prof’s describes a First Circuit case. I have previously commented on the issue in relation to MJ McDonald’s Army Lawyer article.
Federal Rule of Evidence 605 provides that
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
I have been routinely filing a motion in-limine in cases where I expect the prosecution witnesses, typically law enforcement or DFAS, to be providing context testimony. There are several bases to object: hearsay is bootstrapped, there is implied human lie detector testimony, there are Mil. R. Evid. 701 fact wrapped and disguised as to expert testimony, and an implied ‘he wouldn’t be here if he wasn’t guilty.’ Here is another case from the 2d Circuit, thanks to Federal Evidence Review.
In vacating and remanding defendant’s drug conspiracy conviction, Second Circuit rejects the "government’s claim [a]s simply not credible" that an investigating officer’s testimony about a co-conspirator provided necessary background on the investigation; the officer’s testimony regarding his directions to the co-conspirator to phone his "supplier" and the actions taken by the co-conspirator in response was "inadmissible prejudicial hearsay testimony," that impermissibly communicated to the jury that the co-defendant had identified the defendant as his supplier, in United States v. Gomez, __ F.3d __ (2d Cir. August 4, 2010) (No. 08-3829-cr)
It is not often that a circuit takes the government to task on it’s evidentiary arguments. A recent case in the Second Circuit provides an example of a circuit’s reaction to what it considers an implausible argument on the applicability of FRE 801(c). In the case, the circuit vacated the defendant’s sentence and remanded for retrial because the government had introduced at trial hearsay through the testimony of one of the investigating officers in the case.
United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010). (Thanks to an early posting of the decision by CAAFLog.)
Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness. Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining to confessions introduced against an accused. See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002), the rule applies to oral as well as written statements. United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002). This is a different rule than Mil. R. Evid. 106.
In deciding the military judge erred in his application of Mil. R. Evid. 304(h)(2), NMCCA identified six non-exclusive factors to consider on the issue.
Federal Evidence Review has a good reminder that what may appear to be statements admissible as excited utterances may not in fact be so. Thus, defense as always your job is to ensure that the prosecution doesn’t get away with ritualistic or talismanic incantations of, “it’s an excited utterance (or some other exception)".”
United States v. Erickson, ___ F.3d ___ (8th Cir. July 12, 2010).
A constant frustration – how to impeach (and typically with the book is sitting there on counsel table).
Complaining Witness: Blah, blah, blah.
Defense counsel: Now Ms. Complaining Witness you received an Article 15 . . . . (“Objection,” – “Sustained.” [DC looks at judge with a ‘what did I just do’ attitude.]).
Federal Evidence Review notes the following:
In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)
It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.
Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that
Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.
Thanks to Professor Colin Miller for this piece.
In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).
Professor Colin Miller has posted an excellent piece about the current status of expert testimony about the inaccuracies of eyewitness identification.
I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.
Thanks to Federal Evidence Review for a good summary of cases and issues involving 404(b) issues in federal courts.
Court-Martial Trial Practice Blog