Articles Posted in Up Periscope

The Federal Defender at www.fd.org has some useful information, guides, updates, etc., etc., etc.

1. The Prosecutor’s Responsibilities

1-1.1 Primary Responsibility

The prosecutor is an independent administrator of justice. The primary responsibility of a

In my view it’s all too easy for emails to be authenticated in courts.

Emails can be spammed, altered, and a lot of other things, including cut-and-paste which is all too common.

Here is a note from Prof. Colin Miller about a case* in Texas that appears to take a somewhat decent approach in questioning how easy it is to fake or manipulate emails “printouts.”

This article takes a closer look at the Duke Rape Case by analyzing the book Institutional Failures, a collection of essays that testifies to the immense damage wrought by the failure of three systems of control: the University, by failing to protect its students from a mob demanding quick justice; the media, when it reflexively bought the narrative of pampered white students run amok; and the criminal justice system, when it failed to accord the defendants the basic protections offered by North Carolina rules of criminal procedure. The author aims to clarify the contribution this book makes to an understanding of the case.

Dan Subotnik, The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System (45 Akron L. Rev. 883 (2012).

The nation’s crime labs are no strangers to scandal. Last year in Massachusetts, bogus testing by former chemist Annie Dookhan called into question tens of thousands of cases and led to the release of more than 300 people from the state’s prisons.

There are currently no uniform standards or regulations for forensic labs. Congress could take up legislation this year to improve oversight, but critics are skeptical.

http://www.npr.org/2014/01/05/259392234/despite-scandals-nations-crime-labs-have-seen-little-change

it almost always does – if the error was harmless.

federal evidence review blog brings a reminder as follows:

What are the limits in which a trial court may examine witnesses under FRE 614? The Third Circuit recently assessed the boundaries of a judge’s questioning of witnesses in a case involving a defendant who represented himself at trial. Although the judge’s motivations were understandable, none-the-less the judge erred because he “abandon[ed] his proper role and assume[d] that of advocate,” in United States v. Ottaviano, __ F.3d __ (3d Cir. Dec. 24, 2013) (Nos. 11–4553, 13–1119)

Intriguing.  Does military search and seizure depend upon and have to follow state law, even if it is a “federal” officer doing the searching and seizing?

This Article argues for a model of the Fourth Amendment – the contingent Fourth Amendment – that courts and commentators have overlooked. It asserts that the only common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules were to be dictated by state law, even when it was a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.

Michael Mannheimer, The Contingent Fourth Amendment, Northern Kentucky University – Salmon P. Chase College of Law, December 11, 2013

The ever sentient Prof. Colin Miller brings us a good reminder to be careful, at his evidence prof blog.

Federal Rule of Evidence 410(a)(4) states as follows:

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:….

Article 10, UCMJ, may be dead.  But there is still activity on the Sixth Amendment confrontation front.

Here’s an interesting case dredged up by federal evidence review blog about a 40 year old affidavit and its treatment under the Sixth.

Fifth Circuit reverses conviction after the government failed to meet its burden to show that an affidavit was non-testimonial under theConfrontation Clause under the Supreme Court’s “primary purpose” test; circuit also rejects proposed accusatory test as lacking support in precedent or in the text of the Sixth Amendment, in United States v. Duron-Caldera, _ F.3d _ (5th Cir. Dec. 16, 2013) (No. 12-50738)

I was reminded the other day when working on an appellate case of a toolbox item worth the read.

I often review TJAGSA teaching materials when working on a case.  I used to also look at NJS materials, but for some reason they are no longer available to the general public through the various Navy websites.  Even experienced practitioners should consult the TJAGSA materials for at least two reasons:  they can be a helpful start to understanding or identifying an issue, and they likely predict a prosecution response.  Both sides should review the materials, but as I caution a defense counsel they should remember it is the school solution so more likely government biased.

Anyway, we frequently face prosecutions under federal law charged as an Article 134, UCMJ, violation.