Evidence Category Archives — Page 16 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Future MRE change – maybe?

October 22, 2009 | The Law Office of Philip D. Cave

Professor Colin Miller at Evidence Prof blog draws attention to a Wisconsin Law Journal article about a proposed change to Fed. R. Evid. 804.

In September, the Judicial Conference of the United States adopted the recommendation of the Advisory Committee on Evidence Rules to amend Federal Rule of Evidence 804(b)(3) so that prosecutors, as well as defendants, need to present evidence of corroborating circumstances before admitting statements against interest. This change is based upon opinions by certain courts already adding this requirement, such as the Seventh Circuit in United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990), and the Fifth Circuit in United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

The article notes that the proposed rule change was not controversial because "It operates only against the government, and the government did not oppose it." The government’s lack of opposition was likely based upon the fact that the proposed rule is clearly fair.

Federal Rules

October 11, 2009 | The Law Office of Philip D. Cave

At a September 2009, meeting the Federal Rules Committee approved and forwarded a number of changes to federal practice. Of note to military practitioners, about 2 years from now, is Fed. R. Evid. 804 and its changes. I say that long because Mil. R. Evid. 1102 doesn’t require adoption until 18 months after the federal rule is adopted.

Here is a link to the report. the proposed amendment starts at page 167 in .pdf view.

NMCCA instructional error case.

October 9, 2009 | The Law Office of Philip D. Cave

Since 1 October 2009, NMCCA has issued four new opinions. Here is United States v. Holmes, __ M.J. ___ NMCCA 200800501 (N-M Ct. Crim. App. 8 October 2009)( a Judge Meeks case of Wuterich fame). The other cases are sentence appropriateness and the usual administrativa.

The appellant’s sole assignment of error is that the military judge erred by failing to instruct the members that self-defense was a defense to negligent homicide. . .

We conclude the military judge erred to the material prejudice of appellant’s substantial rights. . .

DOD Authorization Act Conference Committee Report.

October 8, 2009 | The Law Office of Philip D. Cave

Thanks to CAAFLog, here is a link to the above report.

Here are the most pertinent sections affecting military justice trial practitioners.

SEC. 512. MEDICAL EXAMINATION REQUIRED BEFORE ADMINISTRATIVE SEPARATION OF MEMBERS DIAGNOSED WITH OR REASONABLY ASSERTING POST-TRAUMATIC STRESS DISORDER OR TRAUMATIC BRAIN INJURY.

New ACCA decision

October 6, 2009 | The Law Office of Philip D. Cave

United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).

On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

Supreme oral argument.

October 3, 2009 | The Law Office of Philip D. Cave

Monday will have the first oral argument of this term in a case relating to criminal law and procedure. Here’s the reminder from the LawProfBlog.

Monday, Oct. 5

Maryland v. Shatzer: limits on police questioning after a suspect asks for a lawyer

Attorney-client privilege

September 29, 2009 | The Law Office of Philip D. Cave

Here is a good post from FederalEvidence blog.

Inadvertent Disclosure Under FRE 502(b) Not Shown By Failure To Assert Privilege Promptly

Court denies motion to compel return of e-mail message after concluding the disclosure was not inadvertent under FRE 502(b) since defense counsel “had ample opportunity to discover and assert the claimed privileged status of the e-mail” and failed to do so, in Clarke v. J.P. Morgan Chase & Co., No. 08 Civ. 02400, slip op. (SDNY Apr. 10, 2009)

Jury selection to begin in Boyle court-martial

September 28, 2009 | The Law Office of Philip D. Cave

This is the headline of an article by John Ramsey in the Fayetteville Observer, 28 September 2009. There are plenty of other articles coming out because of the interest in the case.

An Army sergeant charged with involuntary manslaughter asked this morning for a jury made up of one-third enlisted soldiers.

Sgt. Justin A. Boyle is one of seven soldiers accused of accidentally killing Pfc. Luke Brown last summer after he ran wildly into the woods behind the Ugly Stick Saloon.

The prosecutor’s fallacy.

September 26, 2009 | The Law Office of Philip D. Cave

This is the name given to statistical errors that can arise when deciding the probability that a DNA sample is that of the accused. This is potentially more meaningful than usual to Troy Brown who was convicted of sexual assault and attempted murder. He has a twin brother.

This transposition of the conditional probability can produce results that range from the approximately correct to the grossly inaccurate. Without discussing the extent of the mathematical error, Mueller’s letter stated that this transposition was "so common it has been given a special name, the prosecutor’s fallacy."

Indeed, the fallacy abounds in the statements of judges, defense counsel, and journalists. Statistics textbooks, evidence casebooks and treatises, and judicial opinions all caution against it.

Senate Judiciary Committee Action Stalls On Reporter Shield Bill (S. 448)

September 24, 2009 | The Law Office of Philip D. Cave

Check out FederalEvidenceReview blog.