Articles Posted in Evidence

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
3.  By Major Robert E. Murdough.pdf
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
4.  By Major Michael Zimmerman.pdf
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers
5.  By Major Malcolm Wilkerson.pdf
A Better Understanding of Bullying and Hazing in the Military
7.  By Major Stephen M. Hernandez.pdf

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance.  The recent case of Nappi v. Yelich, from the Tenth highlights that.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.”  Davis v. Alaska, 415 U.S. 308, 315 (1974).  It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.”  Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . ..  To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects.  Davis, 415 U.S. at 316.  But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.”  Id. at 316‐17.

The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent.  See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered.  MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door.  I might have successfully litigated a motion in limine to exclude evidence.  But now I have the key and have to be careful I don’t give it to the prosecution to use.

There are other ways the defense can open the door to otherwise inadmissible evidence.  United States v. Martin just decided by NMCCA is a case in point.  Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

The Navy-Marine Corps Court of Criminal Appeals recently, in United States v. D.W.B., __ M.J. ___ (N-M Ct. Crim. App. 2015), had to decide “a complex and controversial topic: the admissibility of a witness’s testimony regarding memories recovered through a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR).”  Slip op. at 2.

BLUF:  the military judge did not abuse his discretion in concluding that KB’s testimony was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.

In Coker v. Georgia, 433 U. S. 584 (1977), the Supreme Court held that the Eighth Amendment bars the use of the death penalty as punishment for the rape of an adult woman, where there is no homicide.  The question was left open about a non-homicide rape of a child.

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision.  This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective.  But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases.  The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

It has been some time since I’ve had a case where it was necessary to have “cell tower” evidence to “locate” the client.

Here is an interesting piece in The New Yorker.

On May 28th, Lisa Marie Roberts, of Portland, Oregon, was released from prison after serving nine and a half years for a murder she didn’t commit. A key piece of overturned evidence was cell-phone records that allegedly put her at the scene.

“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012).  Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week.  I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity.  Without going in to all of the facts, here are a few I thought relevant.

The CW had dropped her phone in the bath tub and it was no longer available for forensic examination.  In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in.  I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.

Professor Colin Miller has  published two timely and important  essays related to the introduction of social media evidence for its truth.

Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay,  71 Wash. & Lee L. Rev. Online 180 (2014). Here is the abstract:

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

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