Articles Posted in 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.

If a witness testifies at trial the traffic light was red, the accused may ask if they told the police officer the light was green.  And, depending on the answer the accused may offer extrinsic evidence of the inconsistency.  This is a clear prior inconsistent statement.  Usually there is no trouble identifying the issue.  But what happens if the witness says I don’t remember, or is vague, evasive or something else?

The NMCCA has an unpublished opinion in United States v. Corcoran, which should be read for a fuller and better reminder of when a witness may be impeached with a prior inconsistent statement, and most importantly when extrinsic evidence may be offered.

In United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007). The court talked about the process of impeachment by prior inconsistent statement.  It is a tool to question the witness and “By showing self-contradiction, the witness can be discredited as a person capable of error.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983). M.R.E. 613(b) allows extrinsic evidence of a prior inconsistent statement if the witness has been first given a chance to explain or deny the statement.  Keep in mind that there can be no extrinsic evidence if the witness admits making the prior inconsistent statement.  United States v. Gibson, 39 M.J. 319, 324 (C.M.A. 1994).

Professor Imwinklried has an excellent article advocating banishment of the ban on extrinsic evidence to impeach under Federal (Military) Rule of Evidence 608(b) (MRE).  Prof. Imwinkleried questions why the ban is necessary and may in fact encourage perjury on the part of a testifying witness.

Professor Kevin Cole has an excellent summary of the article at CrimProfBlog.

Edward J. Imwinkelried, Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction, UC Davis Legal Studies Research Paper No. 396, University of California, Davis – School of Law, September 14, 2014.

Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise.  Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

I always counsel clients and family that there is NO parent-child privilege in courts-martial under the UCMJ (or in civilian court for that matter).  This is important to know and for the military defense lawyer to make clear at the earliest opportunity.  Any communications between a child and the parent can be used in evidence if known.  That doesn’t mean military investigators or military prosecutors can force a parent to disclose information – well except by subpoena as a court-martial witness.  A parent is free to decline to be interviewed if they want. During initial discussions with your military defense lawyer it is always important to discuss the limits to do with privileged communications.  Reading the UCMJ, the Manual for Courts-Martial, and the Military Rules of Evidence, you can get a good basic overview.  Remember, it is always better to discuss specifics with your military law attorney. Rules of evidentiary privilege are found in Rules 501 to 514 of the Military Rules of Evidence (MRE).  The most common privileges you hear about are the attorney-client, the spousal privilege for the accused and for the non-accused spouse, the psychiatrist-patient privilege, and the clergy privilege.  Each of these rules, except for MRE 514 are long-standing and well developed.  The two more recent developments have been the exception where spouses are substantially and jointly involved in (the same) criminal activity, and the addition of the “victim advocate – victim privilege.”  The Court of Appeals for the Armed Forces had rejected the joint crime exception because that was not in the Rule at the time.  See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007).  There is still some ambiguity and perhaps confusion whether there is an exception to a privilege through forfeiture by wrongdoing.  See e.g., United States v. Marchesano, 67 M.J. 535 (A. Ct.Crim. App. 2008), pet. denied 67 M.J. 371 (C.A.A.F. 2009). Under the UCMJ there is no parent-child privilege, nor  is there one in any MRE.  See United States v. Landes, 17 M.J. 1092 (A.F.C.M.R. 1983); United States v. Kelly, ACM 26707, 1988 CMR LEXIS 719 (A.F.C.M.R. September 2, 1988)(unpub.).  And in light of the analysis in Custis, it is unlikely the appellate courts can graft one on.  This is consistent with federal court practice. Recently the Fourth Circuit has ruled that a federal trial judge erred by “adopting the parent-child privilege and excusing” a nineteen year old son “from testifying before the grand jury” in a firearm investigation involving his father[.] In Under Seal v. United States, _ F.3d _ (4th Cir. June 16, 2014) (No. 13–4933);

 The Fourth Circuit declined to apply a parent-child privilege. In reaching this conclusion, the circuit noted: “No federal appellate court has recognized a parent-child privilege, and we decline to do so here.” In particular, the circuit noted that “Doe Jr. has not made a strong showing of need for the parent-child privilege, and ‘reason and experience’ do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed. R. Evid. 501.” Under Seal, _ F.3d at _ (citation omitted). In arriving at this decision, the circuit canvassed the cases that have considered the issue at the district court and circuit levels.

Thanks to federalevidence.com for bringing this to our attention. In addition to the Fourth, the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh federal circuits agree.  Federal evidence review blog notes that district courts in Nevada, Connecticut, and Washington do seem to have recognized such a privilege. Regardless, a military accused and his parents should continue to exercise care in what discussions they have about an alleged offense.  There may be a limited way to create privileged communications, but it is not under any sort of parent-child privilege.  But these are matters to be discussed with the military defense lawyer first.

Eighth Circuit reviews whether a challenged evidence ruling by the trial court was properly preserved for appeal under FRE 103(b); the issue turned on whether the trial court’s ruling was “tentative” or “definitive”; the objecting party holds the burden to clarify the nature of the ruling, in United States v. Young, _ F.3d _ (8th Cir. May 23, 2014) (Nos. 12-2527, 12-2593).

I have made this point before about objections.  You do an excellent job of making the objection, but did you actually preserve it.  Most judges will give you a direct definitive answer on your objection.  Some however, deliberately or otherwise punt the ruling.  If you get a definitive ruling then the objection is made and preserved.  If you get punted, you MUST make the objection again, or as in Young here, you have to pin the judge down.

The consequences of failing to preserve an evidence issue for appeal can be fatal. Either the issue may be waived or it may be reviewed for plain error under FRE 103(e). Under FRE 103(b), addresses the circumstances in which a party needs to renew an objection at trial: “Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” the application of this rule was recently reviewed by the Eighth Circuit.

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