Evidence Category Archives — Page 4 of 23 — Court-Martial Trial Practice Blog Published by International Military Lawyer

In China they devalue currency. In the U.S. military they devalue your rights?

June 7, 2016 | The Law Office of Philip D. Cave

On 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial. Changes to the rules of evidence are included. It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati. Basically, a military judge grants suppression when

“exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”

Mil. R. Evid. 311(a)(3) (2016).

Is the “victim” a “party” to the proceeding so that MRE 801(d)(2) applies to her

June 7, 2016 | The Law Office of Philip D. Cave

Yes, is my answer, or at least that is my answer in a brief filed with the Army Court of Criminal Appeals and in several arguments at court-martial.

Under Mil. R. Evid. 801(2), you can offer the out of court statements of an opposing party or certain statements of that parties lawyer as evidence. Such evidence is not hearsay.

(d) Statements that Are Not Hearsay.

Can the prosecution violate MRE 412

June 7, 2016 | The Law Office of Philip D. Cave

Yes, is my answer.

In several cases at trial I have objected to prosecution evidence under Mil. R. Evid. 412, for the prosecution’s failure to follow the rule.

Mil. R. Evid. 412 is clear that it applies to prosecutors. First the rule states:

It’s hearsay-worth the read

May 29, 2016 | The Law Office of Philip D. Cave

Captain John S. Reid, as this “Is It Hearsay? A Practical Primer,” in 43 The Reporter, No. 2 (2016), for a quick and good review of the various hearsay rules.

Fraternization and GoD

May 8, 2016 | The Law Office of Philip D. Cave

The Army legal websites are back en clair, having been unavailable to the public for about five to six weeks. Of course, they came back up just as the AFCCA and CAAF were going dark. Anyway.

United States v. Commisso, No. 20140205 (A. Ct. Crim. App. 29 April 2016),

has an interesting discussion and resolution of “inappropriate relationships” under ¶4-14.b., AR 600-20.

Prosecutorial practice

April 17, 2016 | The Law Office of Philip D. Cave

In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

Not CSI, but is it even close

November 17, 2015 | The Law Office of Philip D. Cave

We all laugh at TV shows and movies which we think of as fantasy. The CSI shows, NCIS, JAG, among . We ..get a laugh out of them. But reality may make you cry.

Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice. Boston Review, November 16, 2015.

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

Can DNA really prove much?

November 7, 2015 | The Law Office of Philip D. Cave

“[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.

There are many problems with this opinion.

He notes that:

The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.

He notes then the general purpose behind evidence such as DNA results.

The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches. The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401? To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place.

Indeed, as the FBI itself states:

Recording while having sex

November 6, 2015 | The Law Office of Philip D. Cave

Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault. This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved. If the recording is done with knowledge and consent, that probably is defensible. But what if it isn’t. Many states now have statutes prohibiting unknowing or nonconsensual recordings. As does the federal government in 18 U.S.C. 2251(a). Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

Those pesky OSI/NCIS/CID/agents are lying, or not

September 7, 2015 | The Law Office of Philip D. Cave

(W)e seem to be on an endless quest to unmask the deceiver. This is easier said than done. The research is surprising.

Even the professionals aren’t very good at catching people in a lie.

When we do catch a lie, it’s often not for the reasons you may expect.