Court-Martial Trial Practice BlogWednesday, March 25, 2020
Articles Posted in Evidence
Confirmation Bias and Other Systemic Causes of Wrongful Convictions
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?
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 Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake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
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
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.
Worth the Read
A case to look out for.
United States v. Frost, No. 18-0362/AR
Issue: Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.
Innocent or want a trial, but plead guilty anyway
I have always argued for full and early discovery in court-martial cases. How can you defend someone when discovery is delayed or held-back. And how can you make a properly considered judgment on a PTA or not.
“The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:
George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted.
Can MRE 404(b) allow for an end-run around Hills and Hukill?
The answer is possibly, but it requires some very specific analysis using the Reynolds test. The Air Force Court of Criminal Appeals has decided United States v. Hyppolite, II, where this issue arose.
In this case, the prosecution sought to use evidence of different allegations of a sexual offense to show that, “Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.”
“The crux of Appellant’s position throughout trial and on appeal is that the sexual conduct alleged in each specification was separate and distinct and must stand on its own. Appellant contends that the allegations were not sufficiently similar to show a common plan and that allowing evidence of one charged offense as evidence of a separate charged offense was tantamount to allowing the factfinder to consider evidence of Appellant’s propensity to engage in sexual misconduct. Appellant, citing United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F 2016), renews on appeal his claim that the military judge misapplied Mil. R. Evid. 404(b) and Mil. R. Evid. 403 and improperly allowed charged offenses to be used as propensity evidence to prove other charged offenses?
Put a little English in it
I have had cases of the reluctant witness, typically the spouse physical abuse cases, to United States v. English (ACCA 2018) was not a surprise in terms of the issue. The alleged victim was refusing to cooperate in the prosecution so the prosecution tried to introduce prior statements. The prosecution uses Mil. R. Evid. 803(5), the rule about prior recollection recorded. In English the prosecution and the judge erred. The prosecution needed to check three foundational boxes–but they didn’t according to the ACCA.
(1) the recorded statement contains matters of which a witness once had knowledge but now has insufficient recollection to enable the
witness to testify fully and accurately;