Articles Posted in Evidence

CAAF has issued an opinion in United States v. Campos, __ M.J. ____ (C.A.A.F. 2009).  The court was unanimous, although Judge Baker filed a separate concurring opinion.

This is an opinion that essentially discusses the inadmissible evidence thrust down an accused’s throat through a stipulation as part of a pretrial agreement.  Basically, if you stipulate, even to inadmissible unreliable evidence you are likely stuck on a waiver theory.  Although it does appear in this case that there was no consent to admissibility in the stipulation, just what the testimony would be.  So the accused could have objected at trial.  But CAAF found a knowing waiver of an objection.

Interestingly the concurring opinion addresses the most troubling issue in the case.  The stipulated testimony of an expert, who’d not evaluated the accused, included a sentence recommendation which is verboten under United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989).  Judge Baker resolved his qualms on the legal fiction that the sentence and the recommended sentence must have been serendipitous, because judge’s are presumed to know and apply the law correctly.

Here is a follow-up on a proposed change to Fed. R. Evid. 804(b)(3), a good recommendation.

On April 23-24, 2009, the Advisory Committee on Evidence Rules, of the U.S. Judicial Conference, recommended a proposed amendment to Evidence Rule 804(b)(3). The proposed amendment would clarify that the corroborating circumstances requirement under the rule applies to statements against penal interest introduced by the government. This requirement already applies to statements admitted by the defendant. Some courts have held that the same requirement applies to statements offered by the government.

FederalEvidence.com

Restyling The Federal Rules of Evidence (Part III).

The New York Times reports that the Obama administration is considering preserving the military commissions some form. Part of the motivation for that, it is said, is this: "Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies."

It is unfortunate that we have not yet drawn the right lessons from the Guantanamo-Military Commission experience. One of the notions held by the Bush administration people who set up the commissions was that judges, courts, lawmakers, etc., are naive in their treatment and distrust of hearsay evidence. Like first year law students (and many of their teachers blissfully unburdened by any on-the-ground experience in law enforcement or criminal justice), these "reformers" were bold and believed that any rational dummy knows that hearsay evidence is often worth quite a lot.

What our experience with the commissions should teach us is that hearsay evidence is often worth very little and that its use in adjudication presents serious problems. Any dummy who has just a bit of experience in investigation and litigation should know that. It is not easy to figure out how to sort hearsay wheat from hearsay chaff. But it is important to make the effort. Otherwise we will continue to have imprisonment for years on end on the word of the legendary Afghan goat herder resentful of his neighbor and eager for economic self-advancement.

We are all familiar with Rock v. Arkansas, 483 U.S. 44 (1987), in which a per se bar against hypnotically refreshed testimony of an accused was held unconstitutional.  Prof. Colin Miller reports that the state of Illnois finds that a per se bar can be applied to witnesses other than the accused.

I Put A Spell On You: Supreme Court Of Illinois Reveals That The State Per Se Precludes Hypontically Refreshed Testimony By Any Witness Besides The Criminal Defendant, 27 April 2009.

The Coast Guard has issued an opinion in United States v. McDonald, __ M.J. ___ (C.G. Ct. Crim. App. April 24, 2009).  This opinion discusses why the standard trial counsel sentencing argument in drug pop cases is typically erroneous.  I call it the typical absence of proof problem for trial counsel.

The standard for determining the appropriateness of an argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused. United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).

Appellant relies on United States v. Skidmore, 64 M.J. 655 (C. G. Ct. Crim. App. 2007) to support the conclusion that the argument at issue amounts to plain error. In Skidmore, this Court held that it was plain error for the trial court to hear evidence and argument on the fact that the accused was a boarding officer because that fact was not “directly related” to the single drug use offense charged in that case. Id. at 661 (citing United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F 2007)).  Skidmore provides guidance to trial counsel [and defense counsel] presenting and arguing [or objecting to] evidence in aggravation in drug cases,

Mil. R. Evid. 106, is a rule of completeness and applies to both the prosecution and the defense.

Rule 106. Remainder of or related writings or recorded statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Federal Evidence blog has reported a Second Circuit opinion dealing with Fed. R. Evid. 106 (the same rule as the military rule).