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
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.
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)?
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)
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."
“That’s the Guy!”: Federal Rule of Evidence 801(d)(1)(C) and Out-of-Court Statements of Identification
Found in 34 CARDOZO L. REV. 1539
Occasionally the prosecution wants to use court records,
There is an evidentiary exception that can apply. But, what about the Confrontation Clause? Federalevidence review has a post on that.
Eighth Circuit reverses conviction for being an accessory after the fact by assisting another (Clark) in avoiding apprehension for committing a murder based on Confrontation Clause violation resulting from the introduction of a Court Minute Entry (of “Clark’s guilty plea as conclusive proof that” he had committed the offense) and without an opportunity to cross-examine the declarants about the statements, in United States v. Head, _ F.3d _ (8th Cir. March 1, 2013) (No. 12-2625).
The various breath test instruments used by the military and civilian police are subject to challenge, for a number of reasons.
Here’s a “report” about the Intoxilyzer 8000 courtesy of PS.
Prosecutors ask CID, NCIS, OSI, CGIS agents all the time why they didn’t believe the accused in the interrogation. The answer often is a variant of, “he was nervous.”
Yeah, right.
First they are told and usually escorted to the LE office. The escort won’t tell them why or what’s going on. They then have to wait the appropriate time in the waiting area to heighten the tension. I was reminded of this by a post from fourth amendment blog.
The Rule in Queen Caroline’s case is inconsistent with the present intent of Mil. R. Avid. 613(b). But the rule is still applied (IMHE) in courts-martials and in a split of federal circuits. We may be headed back in time.
Schaffzin on the Return of the Rule in Queen Caroline’s Case
Katharine Traylor Schaffzin (University of Memphis – Cecil C. Humphreys School of Law) has posted Sweet Caroline: The Backslide from Federal Rule of Evidence 613(b) to the Rule in Queen Caroline’s Case on SSRN. Here is the abstract:
Court-Martial Trial Practice Blog