Court-Martial Trial Practice BlogArticles Posted in Evidence
Corroboration
An item sometimes missed or perhaps not always explored in cases with a confession is the question of corroboration. Here is an Army case that discusses the issue quite well. The case recognizes that the amount of corroboration is small so it’s easy to gloss over the corroboration issue. Here is the value of the admonition to check the elements, do whatever “proof” chart you use, and take a moment to consider if the government can meet their burden to get past a motion. Also remember, that so long as made in good faith, such a motion becomes a discovery tool. A motion for a Bill of Particulars is not to be used purely for discovery, however, such a motion – again so long as made in good faith — in part gives some discovery. Anyway, back to Rosas.
United States v. Rosas, No. ARMY 20060075 (A. Ct. Crim. App. 14 July 2009).
Appellant was the leader of a conspiracy involving four other United States Soldiers, several U.S. citizens, and one or more Colombian co-conspirators. His offenses occurred over the course of a two-year period during which appellant was a mission supervisor on electronic surveillance flights over Colombia.
Fingerprint examination – expert testimony – admissibility.
We have jurisdiction under 28 U.S.C. § 1291. Concluding that the district court did not abuse its discretion in allowing the government to present expert evidence that a thumb print found on some of the contraband recovered by the authorities was a match to Baines’ print, we affirm the judgment of the district court.
United States v. Baines, No. 08-2098, 2009 U.S. App. LEXIS 15945, at *1–2 (10th Cir. Jul. 20, 2009).
SODDI
Does the SODDI defense work?
Here are some thoughts or considerations.
Elizabeth R. Tenney, Hayley M.D. Cleary, Barbara A. Spellman, "This Other Dude Did It!" A Test of the Alternative Explanation Defense, 21 The Jury Expert July 2009.
Consciousness of guilt
Seventh Circuit determines that admission of an audiotape of robbery defendant beating and threatening the life of a potential witness was a “close[ ] call” but that its probative value in suggesting defendant’s guilty conscience “cannot be genuinely disputed” and that this evidence was not unfairly prejudicial despite the fact that one could hear the sounds of the beatings on the recording, in United States v. Calabrese, __ F.3d __ (7th Cir. July 14, 2009) (No. 08-2861).
/tip FederalEvidenceBlog.
Prosecution “overview” witnesses.
I have commented on this issue previously: More on groundwork. Now the 1st Circuit seems to want to get tougher with prosecutors.
First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony.
After prior admonitions, First Circuit warns prosecutor that failure to avoid the problems in using an “overview” witness may result in possible sanctions or disciplinary action, in United States v. Flores-De-Jesus, _ F.3d _ (1st Cir. June 18, 2009) (No. 06-267, 06-2670, 06-2671) (Torruella, Lipez, and DiClerico (DJ)).
/tip: FederalEvidenceBlog.
Witness’s legal conclusions.
This case is relevant to both the prosecution and the defense. And not just on cross-examination, but also on direct.
On defense claim that the defendant did not affirmatively consent but only “acquiesced” to the search, defense counsel’s use of the word “acquiesced” in cross-examining the officer was inadmissible under FRE 701 for attempting to force the officer to adopt a legal conclusion, in United States v. Canipe, __ F.3d __ (6th Cir. June 30, 2009) (No. 08-5534).
/tip FederalEvidenceBlog.
Character of a victim and self-defense.
Prof. Colin Miller has this very useful post on the character of a "victim" when a defense of self-defense is raised.
In Fish, Harold Arthur Fish appealed from his conviction for second degree murder, claiming, inter alia,
M-Diaz and urinalysis cases
I’ve commented earlier that I do not see Melendez-Diaz altering the drug urinalysis case in terms of laboratory evidence. Here is some additional thought which I think supports my conclusion.
Q2: Peer review, forensic experts.
One question that came up during oral argument, and remains after the ruling, is the application of the ruling to peer review witnesses. It is common for a supervisor or peer to review a forensic examination, as part of a quality control process. The reviewer often does not conduct the specific analysis or testing.
Next Crawford case.
Here is the QP is Briscoe, a VA case which addresses one of the points raised in Melendez-Diaz. I have done this in drug urinalysis cases – asked for production of the lab witnesses as defense witnesses – and been refused.
If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?
Professor Friedman is counsel of record. He was amicus in M-Diaz and it looks like the Supreme Court in M-Diaz accepted his general approach to the issues in M-Diaz. If the Sixth Amendment means anything, then the witness has to be produced and saying that the defense can call the witnesses themselves is not the same as confrontation. It seems to me that the Briscoe issue ought to be resolved in the same manner as for a witness. The prosecution can’t offer witness statements and then retreat to a rule that says the defense has the right to supoena the witnesses for cross-examination. So why should the result be the same with forensic reports.