Articles Posted in Witness issues

· Police can tell when a suspect is lying
· People confess only when they have actually committed the crime they are being charged with
· Most judges and jurors fully understand court instructions
· Eye-witnesses are always the most reliable source of case-related information
· Most mentally ill individuals are violent
· All psychopaths are criminals
· We need to be ‘tough on crime’ by giving convicted felons harsher punishments
· The death sentence is an effective way to deter criminal activity
· Excitement improves memory

What do you think the right answer is to the above statements.  Have a go before you — read on for the point. Continue reading

http://www.medicalnewstoday.com/articles/299443.php

While numerous studies have hailed mindfulness meditation for its potential benefits for the mind and body, new research suggests it may have a negative impact on memory.
While mindfulness meditation is believed to be beneficial for the mind and body, researchers say the practice may impair the ability to accurately recall memories.

(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 NMCCA has issued an interesting published opinion on a government appeal.

United States v. Rios.  From the opinion.

  • The appellee is currently facing trial by special court-martial on numerous charges regarding larceny from the Marine Corps Exchange (MCX) on Camp Pendleton, California.

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance.  The recent case of Nappi v. Yelich, from the Tenth highlights that.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.”  Davis v. Alaska, 415 U.S. 308, 315 (1974).  It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.”  Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . ..  To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects.  Davis, 415 U.S. at 316.  But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.”  Id. at 316‐17.

The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent.  See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered.  MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door.  I might have successfully litigated a motion in limine to exclude evidence.  But now I have the key and have to be careful I don’t give it to the prosecution to use.

There are other ways the defense can open the door to otherwise inadmissible evidence.  United States v. Martin just decided by NMCCA is a case in point.  Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.

Under the “old” Article 32, the right to call and examine witnesses and to obtain production (discovery) of evidence was pretty robust.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing.  That audio could then be transcribed into a verbatim transcript.  The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

I am for (and against) the SVC program.  I am mostly for it because it is necessary.  Over the years and prior to the Air Force start there were regulations in place that required the trial counsel to inform the “victim” of what was happening in the case and get their input.  The trial counsel were not doing the job and in some instances deliberately refused to follow the guidance.  By example, a trial counsel who refuses to let the complaining witness know about pretrial negotiations, and who got upset when I gave the CW a copy of the pretrial agreement offer.  Which leads to two reasons I’m not necessarily in favor of the SVC program.

Because the trial counsel routinely failed in their requirements, I got in the habit of asking the CW during my interview if they “knew what was going on?”  They’d say “no, not really.”  I would then take the opportunity to tell them what was going on.  I would tell them that I was the defense counsel telling them this and they are welcome to confirm with the trial counsel.  At that moment the interview had some lessened tension.  In several cases I’m convinced that my “helping” the CW understand what was going caused her to modulate anger against my client and it may have helped later.  So now that’s a lost opportunity.

I do have some concerns about the potential for SVC’s exceeding the scope of their responsibility to their client and the court.  Whether or not those concerns are supported will be open to discussion for some time to come.  There is a potential concern for coaching as opposed to preparing a CW for testimony.  Trial and defense counsel prepare but don’t (shouldn’t) coach a witness.  It’s perfectly proper to prepare for testifying.  In one particular case I was concerned about a SVC who objected to questions unrelated to MRE 412 or 513 during an Article 32.  That’s not their place or responsibility.

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