Articles Posted in Evidence

Dog sniffs of the exterior of a vehicle are not searches under the Fourth Amendment. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007). "Such a dog sniff may be the product of an unconstitutional seizure, however, if the traffic stop is unreasonably prolonged before the dog is employed." United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006), [*6] cert. denied, 549 U.S. 1118 (2007) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Such a situation might typically occur when an officer unreasonably lengthens a roadside detention until another officer can bring a drug dog to the scene. . . . Having said that, the dog sniff was nonetheless impermissible if it was the result of an unconstitutionally prolonged traffic stop. See Peralez, 526 F.3d at 1119; Alexander, 448 F.3d at 1016.

United States v. Suitt, No. 08-2688, 2009 U.S. App. LEXIS 13769, at *5–6 (8th Cir. Jun. 25, 2009).

So, if you are stopped at the gate to the base and the MP and dog walk up to your car to sniff, the dog to do the outside, the MP to do the inside, then that should be OK.

Professor Colin Miller, Chicken Little Or Canary In The Coal Mine?: Supreme Court Finally Issues Opinion In Melendez-Diaz, Finding Certificates Of State Laboratory Analysts To Be "Testimonial," 25 June 2009.

Analysis: Law need not bow to chemistry, SCOTUSBlog.

Here is a link to Professor Friedman’s initial thoughts on this case.

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

As previously stated, I think CAAF will stick with Magyari, and will likely find some language in the majority opinion.  However, my sense is that the court will do so for the wrong reasons stated within the dissent by Justice Kennedy.  Here is Professor Friedman’s comment on that – the political reasoning.

I particularly like this part:

Forensic evidence is not uniquely immune fromthe risk of manipulation. According to a recent study conducted under the auspices of the National Academy ofSciences, “[t]he majority of [laboratories producing foren-sic evidence] are administered by law enforcement agen-cies, such as police departments, where the laboratoryadministrator reports to the head of the agency.” National Research Council of the National Academies, Strengthen-ing Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter NationalAcademy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particularquestion related to the issues of a particular case, theysometimes face pressure to sacrifice appropriate method-ology for the sake of expediency.” Id., at S–17.

We have had this in all of the military labs over time – Drug Labs, USACIL, DCFL.  Military labs have not been immune to error and/or manipulation.

Melendez-Diaz v. Massachusetts

This is the link to the Supreme Court Decision in M-D.

Here’s a link to the arguments before the court.

Earlier I commented on prosecutors introducing inadmissible irrelevant evidence to set the stage or lay the groundwork for an investigation and prosecution (here).  Here’s another case, again from the 1st Circuit.

This case requires us to assess the propriety of the government’s use of a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an "overview" of the prosecution’s case. While we have condemned aspects of this practice before, most notably in United States v. Casas, 356 F.3d 104, 117 (1st Cir. 2004), we must regrettably revisit the overview witness issue in some detail because of the abuse of that practice in this case and others.

United States v. Flores-De-Jesus, No. Nos. 06-2670, 06-2671, 06-2672, 2009 U.S. App. LEXIS 13093, at *1 (1st Cir. Jun. 18, 2009).

First Circuit focuses on relevance tests to assess the admission of out-of-court statements offered for a non-hearsay purpose; ultimately the error was harmless, in United States v. Benitez-Avila, __ F.3d __ (1st Cir. June 9, 2009) (No. 08-1463).

Trial counsel often want to call the investigator to lay the groundwork on how the investigation was started, how it progressed, and how it lead to the accused.

There is a basic rule that evidence that is hearsay for one purpose may still be admissible for another non-hearsay purpose.  However, the non-hearsay purpose must also be closely examined for relevance and Mil. R. Evid. 403 purposes.  In Benitez-Avila the hearsay nature of the admitted testimony was easily dealt with under Fed. R. Evid. 801.  The court then went on to find error under Fed. R. Evid. 403.

The proposition that hearsay does not include statements showing context or background and not received for the truth of what they said should not be understood to mean that any kind of statement, no matter how prejudicial, may be introduced if it shows what might loosely be described as context or background. First, the aspects of ‘context’ or ‘background’ for which the evidence is offered must be relevant. And even if it is relevant its probative value in relation to the nonhearsay purpose must not be ‘substantially outweighed by the danger of unfair prejudice’.

The Best Of Everything: Fourth Circuit Erroneously Finds That Best Evidence Rule Doesn’t Apply In Firearms Appeal

Federal Rule of Evidence 1002, the Best Evidence or Original Document Rule, indicates that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

As I tell my Evidence students, this Rule is oft misunderstood, not only by law students, but also by lawyers and even judges. The recent opinion of the Fourth Circuit in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), is a good example of judges completely misunderstanding the Best Evidence Rule.