Witness issues Category Archives — Page 3 of 3 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Is there an SVC crisis?

March 29, 2015 | The Law Office of Philip D. Cave

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.

Recovered memory-or-making it up?

March 6, 2015 | The Law Office of Philip D. Cave

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.

Prosecutor discipline?

January 24, 2015 | The Law Office of Philip D. Cave

Remember Napue v. Illinois, 360 U.S. 264 (1959)? Here’s the Justia summary.

At petitioner’s trial in a state court in which he was convicted of murder, the principal state witness, an accomplice then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State’s Attorney that he had received no promise of consideration in return for his testimony. The Assistant State’s Attorney had in fact promised him consideration, but he did nothing to correct the witness’ false testimony. The jury was apprised, however, that a public defender had promised “to do what he could” for the witness.

The failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment. Pp. 360 U. S. 265-272.

An important reminder of what is inconsistent

December 26, 2014 | The Law Office of Philip D. Cave

If a witness testifies at trial the traffic light was red, the accused may ask if they told the police officer the light was green. And, depending on the answer the accused may offer extrinsic evidence of the inconsistency. This is a clear prior inconsistent statement. Usually there is no trouble identifying the issue. But what happens if the witness says I don’t remember, or is vague, evasive or something else?

The NMCCA has an unpublished opinion in United States v. Corcoran, which should be read for a fuller and better reminder of when a witness may be impeached with a prior inconsistent statement, and most importantly when extrinsic evidence may be offered.

In United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007). The court talked about the process of impeachment by prior inconsistent statement. It is a tool to question the witness and “By showing self-contradiction, the witness can be discredited as a person capable of error.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983). M.R.E. 613(b) allows extrinsic evidence of a prior inconsistent statement if the witness has been first given a chance to explain or deny the statement. Keep in mind that there can be no extrinsic evidence if the witness admits making the prior inconsistent statement. United States v. Gibson, 39 M.J. 319, 324 (C.M.A. 1994).

Ban the ban on extrinsic impeachment evidence

November 2, 2014 | The Law Office of Philip D. Cave

Professor Imwinklried has an excellent article advocating banishment of the ban on extrinsic evidence to impeach under Federal (Military) Rule of Evidence 608(b) (MRE). Prof. Imwinkleried questions why the ban is necessary and may in fact encourage perjury on the part of a testifying witness.

Professor Kevin Cole has an excellent summary of the article at CrimProfBlog.

Edward J. Imwinkelried, Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction, UC Davis Legal Studies Research Paper No. 396, University of California, Davis – School of Law, September 14, 2014.

That’s him!

October 3, 2014 | The Law Office of Philip D. Cave

Your weekend reading program.

Many, many, many years ago, as a police officer I had attempted to arrest a suspect who successfully got away. Some days later, I saw a CID officer bringing in a person to the station – and I said, “that’s him.” It wasn’t, I was wrong.

My first general court-martial in 1980 was a contested double armed robbery. We had extensive litigation over a classic “show-up” at the crime scene. The client was restrained in a police car, the victim was brought over to look at him and identified him. That hard fought motion was lost. (I actually remember this case as my first “war story” in the defense trenches for other reasons – for example when the client gets in a fight with four chasers in front of the members. My quickest not guilty finding was less than five minutes, this was my quickest guilty finding – less than 15 minutes.)