Evidence Category Archives — Page 20 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Pushing the envelope?

June 16, 2009 | The Law Office of Philip D. Cave

What Are Your Intentions?: Sixth Circuit Finds No Plain Error In DEA Agents Drug Quantity Testimony

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.

Consciousness

June 13, 2009 | The Law Office of Philip D. Cave

In prosecution for first-degree murder and for using a firearm in the commission of a crime of violence, testimony that defendant threatened two percipient witnesses at the scene of the crime were admissible under FRE 404(b) to show consciousness of guilt, in United States v. Begay, _ F.3d _ (9th Cir. June 1, 2009) (No. 07-10487)

Other act evidence under FRE 404(b) is admissible for other than propensity purposes, such as for showing a defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This list is not exhaustive and occasionally other act evidence is admissible for other purposes, such as to show a defendant’s consciousness of guilt on the charged crime (emphasis added).

FederalEvidence blog.

Don’t forget that in the right case the defense should be introducing, arguing for, and asking for instructions on consciousness of innocence. As of yet no military or federal court accepts this theory when it comes to instructions. However, there are plenty of state court rulings on “consciousness of innocence.”

A significant holding

June 12, 2009 | The Law Office of Philip D. Cave

United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009). Let’s get the nub of the case from CAAFLog’s summary.

Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a ‘simple disorder,’ under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an ‘offense necessarily included’ under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court’s previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

Experts on eyewitness testimony

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

Here is a link to Prof. Colin Miller’s site.

The Areas Of My Expertise: Alabama Federal Court Allows Expert Eyewitness Testimony Despite Eleventh Circuit Precedent.

Professor Miller discusses an 11th Circuit decision allowing expert testimony on the unreliability of eyewitness identifications. The court allowed testimony about problems with identifications, but did not allow testimony that the particular identifications in the case were erroneous.

Seems like it’s explaining things to the jury, much like the prosecution gets to introduce “syndrome” like evidence.

Post-vaction Syndrome

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

Oh well, back from vacation. Lot’s to catch up on.

Here is an interesting article:

Anthony E. Giardino, COMBAT VETERANS, MENTAL HEALTH ISSUES, AND THE DEATH PENALTY: ADDRESSING THE IMPACT OF POSTTRAUMATIC STRESS DISORDER AND TRAUMATIC BRAIN INJURY, 77 Fordham L. Rev. 2955 (2009).

More on Breath Tests

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

I’ve already commented on breath tests.

Are military breath tests reliable?

Is the Intoxilyzer 5000 racially and genetically biased?

Here is a new case and continuing discussion which potentially excludes evidence of the Intoxilyzer 5000, a device found to be used frequently at military bases. The issue is actually one of discovery.

Supreme Court Of Minnesota Throws Intoxilyzer 5000 In The Drunk Tank Based Upon Non-Production Of Source Code, Prof. Colin Miller, 3 June 2009.

I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices.

Prosecution failure to provide credibility related discovery on their witnesses.

June 1, 2009 | The Law Office of Philip D. Cave

A recent Ninth Circuit case highlights the importance of disclosing impeachment evidence and the consequences of failing to do so. The prosecutor requested a criminal history check on a key government witness. The prosecutor indicated he was unaware of the criminal history which was not disclosed to the defense. The defendant was convicted and subsequently the criminal history evidence came to light.

The prosecution’s failure to disclose to the defendant the criminal history of a key witness violated the defendant’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963); the criminal convictions were admissible under FRE 609 and the prior acts of theft or dishonesty were admissible under FRE 608(b), in United States v. Price, F.3d (9th Cir. May 21, 2009) (Nos. 05-30323, 06-30157).

Getting this type of discovery is a frequent problem in military cases. You will notice that Price does not cite to Henthorn. It is unlikely you will find a reference in military cases to Henthorn as a legal standard in the military for background checks on prosecution witnesses. Military discovery is broader than in the civilian community, and you should take the position that Henthorn is more restrictive than contemplated in military practice. An additional argument is that such background checks do not require a discovery request; the duty on the prosecutor is a self-executing one that must be personally done in all cases.

"the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police."

Kyles v. Whitley, 514 U.S. 419 (1995).

Excluding taped conversations

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

United States v. Crabtree, No. 08-4411, 2009 U.S. App. LEXIS 10720(4th Cir. May 19, 2009).

In a published opinion the Fourth Circuit sides with the majority of federal circuit courts of appeal that there is no government “clean hands” exception to the receipt into evidence of unlawfully taped telephone calls.

Daniel Crabtree was sentenced to twenty-four months imprisonment for violating the terms of his supervised release. The government established some of the violations by introducing into evidence certain audio tapes that were made by Crabtree’s girlfriend in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510 – 2522 (West 2000 & Supp. 2008). We agree with Crabtree that although the government was not involved in the interception of Crabtree’s conversations, Title III nonetheless prohibited the government from introducing evidence of the intercepted conversations. We therefore vacate the district court’s judgment and remand for further proceedings.

Comment on Yammine

May 21, 2009 | The Law Office of Philip D. Cave

Here is Prof. Colin Miller’s comment on United States v. Yammine, decided by the NMCCA recently.

Does Child Pornography=Child Molestation?: Military Court Finds Child Pornography Evidence Was Properly Admitted As Character Evidence

Forensics rants

May 12, 2009 | The Law Office of Philip D. Cave

Here’s a new law review article to go along with my rants about how prosecution expert and forensic evidence can be biased, it’s difficult to deal with, and the system allows the problem.

Volume 95, Issue 1
Brandon L. Garrett and Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) View PDF

This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants—82 cases or 60 percent—forensic analysts called by the prosecution provided invalid testimony at trial—that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by seventy-two forensic analysts called by the prosecution and employed by fifty-two laboratories, practices, or hospitals from twenty-five states. Unfortunately, the adversary system largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief.