Evidence Category Archives — Page 8 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

An appeals court cannot take judicial notice of an element of the offense

May 30, 2014 | The Law Office of Philip D. Cave

The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page). The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

BLUF: We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

Improvements in eyewitness identification

April 18, 2014 | The Law Office of Philip D. Cave

What the witness sees and remembers is a function of many factors specific to that witness and the crime scene: the witnesses ability to see without glasses, the absence of any lighting at night. What complicates matters is the deliberate or unintentional police actions (and actions of others – see ‘memory conformity’ issues).

The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.

The problem is that decades of studies show eyewitness testimony is right only about half the time – a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.

Some evidence notes

April 11, 2014 | The Law Office of Philip D. Cave

Consistent with military law, the federal circuits generally follow the principle that evidentiary errors in a judge alone case are often nonprejudicial. The basic theory being that judges are presumed to know and apply the law, and will ignore impermissible evidence even where there has been no objection.

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a “presumption of conscientiousness” in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that “had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence,” in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701).

On a side note to this case, another caution regarding “talismanic incantations” of admissibility of other acts evidence.

Still in flux?

April 11, 2014 | The Law Office of Philip D. Cave

There should be a reassessment and there should be “amended” rules for how cell phones, tablets, and computers are searched.

Accessibility to computers and cellphones created an extraordinary change in how we communicate, and in particular how we retain and store private information about those communications. Along with the nature of the communications, the ability to retrieve that private information has also dramatically changed. No longer do we put a paper copy of a letter in a file folder and cabinet in our home. Often we carry a digital copies of that letter in our pocket, a cellphone holster, a tablet, and a laptop computer.

In the first of several posts Orin Kerr addresses the Supremes on cellphones: “The need for computer-specific Fourth Amendment rules in the cell phone search cases.”

Comment on silence

March 17, 2014 | The Law Office of Philip D. Cave

Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection. Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments. This is a particular bugaboo of my when LE agents and trial counsel stray from the correct path. This involves judgment and discretion on whether to object.

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)

It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Two years of federal evidence

January 20, 2014 | The Law Office of Philip D. Cave

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

A little more on forensics

January 14, 2014 | The Law Office of Philip D. Cave

It is unusual in military cases to have evidence of microscopic hair analysis. But, it’s worth keeping up on, just in case. Also, the point below is further substantiation of the National Academy of Sciences critique of forensic “science” evidence. A 2009 news release on the NSA report had this to say:

A congressionally mandated report from the National Research Council finds serious deficiencies in the nation’s forensic science system and calls for major reforms and new research. Rigorous and mandatory certification programs for forensic scientists are currently lacking, the report says, as are strong standards and protocols for analyzing and reporting on evidence. And there is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic methods. Moreover, many forensic science labs are underfunded, understaffed, and have no effective oversight.

Interestingly, in April 2009, before the NSA report was released, the FBI published a short piece about hair examination, which seems to support the reliability of MHE.

Unimpeachable source

July 8, 2013 | The Law Office of Philip D. Cave

Prof. Colin Miller asks, and then gives.

The recent opinion of the United States District Court for the Southern District of Florida in Dingman v. Cart Shield USA, LLC, 2013 WL 3353835 (S.D.Fla. 2013), addresses three interesting questions under Federal Rule of Evidence 609: (1) are convictions resulting from nolo contendere pleas potentially admissible under Rule 609; (2) is a conviction for failure to register as a sex offender a crime of dishonesty or false statement under Rule 609(a)(2); (3) and should a conviction for failure to register as a sex offender be admissible under Rule 609(a)(1)?

Object I say. . .

July 8, 2013 | The Law Office of Philip D. Cave

If a witness fails to object? What if the witness has discussed all with the prosecutor? Anyway . . .

Fourth Circuit concluded it did not need to determine the scope of the psychotherapist-patient privilege since the respondent had waived any privilege; circuit notes the obligation "to timely assert the psychotherapist—patient privilege," United States v. Bolander, _ F.3d _ (4th Cir. July 5, 2013) (No. 12-6146)

Right to present a defense

June 14, 2013 | The Law Office of Philip D. Cave

Prof Colin TG Miller has this post.

In Crane v. Kentucky, the Supreme Court found that:

"[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense."