(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.
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.
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.
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.
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.
Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends. The rapes allegedly included him choking the complaining witness during the rapes.
He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it. At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense. Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism. So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and “erotic asphyxiation.” There is confusion over application ofthe term and the scope of the behavior. There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly. Like autoeroticism, the choking game can be deadly or cause serious harm.
Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense. I have several appeals now where this issue is clearly presented. But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.
Prof. Berman at sentecing law and policy invites our attention to an interesting new decision from the Third.
US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) .
We all of us have an a client who is charged with distribution of CP because they were using a P2P program such as Limewire, and where the automatic settings placed information in the “shared” folder. Because the information is in the shared folder it is accessible to others who search Limewire and come across it. Actually many clients have been caught through the FBI or some other enforcement agency trolling Limewire for such information.
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.