Evidence Category Archives — Page 2 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

“Believe the victim”–encouraging a presumption of guilt?

September 25, 2021 | The Law Office of Philip D. Cave

For your reading. R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

Can you impeach the jury and their verdict

June 4, 2021 | The Law Office of Philip D. Cave

What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations?

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Communicated character

January 19, 2021 | The Law Office of Philip D. Cave

If you have defended an assault case based on self-defense, you know that the alleged victim’s character for violence can be relevant. What about on direct?

If your client knows of prior acts of violence then he may have a better argument that it was necessary to use, perhaps, more force than if the client knew the victim to be a peaceful person.

Mil. R. Evid. 405(a) allows the opinion of a victim’s character trait for violence. 405(b) would appear to support specific acts regarding that trait of violence.

The medical exception in evidence.

August 22, 2020 | The Law Office of Philip D. Cave

Prof. Colin Miller brings, The Admissibility of Statements Made to Doctors Consulted For the Purpose of Enabling Him/Her to Testify

Federal Rule of Evidence 803(4) provides an exception the rule against hearsay for

A statement that:

Evidence collection at the hospital

March 26, 2020 | The Law Office of Philip D. Cave

Wednesday, March 25, 2020

Batts & Sanger on Collecting Forensic Evidence in the Emergency Department

By CrimProf BlogEditor

Confrontation of “science”

March 25, 2020 | The Law Office of Philip D. Cave

Cheng & Mannion on Forensic Reports and the Confrontation Clause

By CrimProf BlogEditor

Confirmation Bias and Other Systemic Causes of Wrongful Convictions

July 22, 2019 | The Law Office of Philip D. Cave

Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective,

By D. Kim Rossmo and Joycelyn M. Pollock.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Affirmative defenses–Macdonald trailers?

June 21, 2019 | The Law Office of Philip D. Cave

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

You are presumed guilty

May 25, 2019 | The Law Office of Philip D. Cave

Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

Don’t do speaking objections in front of members

May 19, 2019 | The Law Office of Philip D. Cave

When a party objects to testimony or documents they should state “I object” and cite the evidence rule or principle and nothing else. You may be tempted, but don’t make a speaking objection.

United States v. Gurfein, NMCCA 2019, is an example of why speaking objections are improper and can cause problems. I have had trial cases where I’ve had to cut trial counsel off from making a speaking objection in front of members. I have appellate cases where the counsel and military judge engaged in a discussion of the objection (sometimes lengthy and detailed) in front of the members–this is improper.

Defense counsel–shut trial counsel down when they make speaking objections in front of members. I know judges want to save time and not inconvenience members, but you have a client who may be adversely affected by what they hear.