Evidence Category Archives — Page 5 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

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.

Sex assault-alcohol blackouts-and memory

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

We do a lot of military sexual assault cases with alcohol involved. It is not unusual for a complaining witness to claim they were drunk, blacked out and didn’t consent.

First, if blacked out they can’t know they didn’t consent–it’s impossible if they were blacked out, rather than them exhibiting a convenient and selective memory.

Second, we know from medical science that a person can do a whole lot of things which does include the voluntary, and apparently consensual engagement is sexual activity. Here is an example, out of many, how a person can engage in a lot of thoughtful and physical activity and not remember it.

Worth-the-read

August 22, 2015 | The Law Office of Philip D. Cave

Several relevant items for you this weekend.

Orin Kerr has this post at The Volokh Conspiracy. In part:

Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original.

Spousal privilege

August 21, 2015 | The Law Office of Philip D. Cave

The NMCCA has issued an interesting published opinion on a government appeal.

United States v. Rios. From the opinion.

The appellee is currently facing trial by special court-martial on numerous charges regarding larceny from the Marine Corps Exchange (MCX) on Camp Pendleton, California.

Worth-some-study: Future effect of technology

August 21, 2015 | The Law Office of Philip D. Cave

Worth-the-read is A PRELIMINARY DRAFT OF Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence, is the source for the ABA article I just posted about ancient documents.

There is another proposal in the Draft relevant to technology. The drafters are suggesting changing FRE 902, which as we know will likely change MRE 902 18 months later (absent action from the Prez.).

902 (13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

Ancient effect of technology

August 21, 2015 | The Law Office of Philip D. Cave

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.

The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.

A committee report (PDF) said the rule “has always been questionable” but it has been tolerated because it is infrequently used, and usually in cases where there is no other evidence on point.

Worth the Read from Military Law Review

July 27, 2015 | The Law Office of Philip D. Cave

There are some interesting articles for military justice practitioners in the Summer 2015, MLR.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers

A Better Understanding of Bullying and Hazing in the Military