Court-Martial Trial Practice Blog

not exceptional hearsay

July 27, 2012 | The Law Office of Philip D. Cave

Military (Federal) Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

While the rule appears to allow a broad exception for hearsay, the Supreme Court of VA points out the narrowing language still has effect.*

Manual for Courts-Martial 2012

July 21, 2012 | The Law Office of Philip D. Cave

Get your 2012 MCM here:

je vous avoue

July 21, 2012 | The Law Office of Philip D. Cave

Acute Suggestibility in Police Interrogation: Self-Regulation Failure as a Primary Mechanism of Vulnerability, Deborah Davis, University of Nevada, Reno, Richard A. Leo, University of San Francisco – School of Law, 2012

Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012)
Univ. of San Francisco Law Research Paper

Abstract:
This chapter examines the failure of police, attorneys, judges, and juries to appreciate the magnitude of acute impairments of will and cognition in interrogation. The authors explore sources of enhanced susceptibility to interrogative influence triggered by the nature of the suspect’s immediate circumstances, rather than by chronic personal characteristics, which they call “acute interrogative suggestibility.” The authors consider the role of “interrogation-related regulatory decline” or IRRD in producing acute interrogative suggestibility — that is, the decline in self-regulation resources necessary to control thinking and behavior in service of resisting interrogative influence. In particular, the authors concentrate on three common but underappreciated sources of IRRD in police interrogation, one or more of which are present in most cases involving claims of involuntary or false confession: acute emotional distress, fatigue and sleep deprivation, and glucose depletion. The chapter concludes by arguing that much more weight should be given to issues of acute sources of vulnerability to influence and suggestion than is presently the case.

It was him, I’m sure

July 20, 2012 | The Law Office of Philip D. Cave

Maybe not. There is quite a bit of research and anecdotal evidence to show that eyewitness testimony can be unreliable. Now New Jersey is in the frontline of making sure a jury is aware of the potential problems with eyewitness testimony. To quote the ABA Journal.

New jury instructions in New Jersey will warn that human memory is not foolproof and eyewitness testimony must be carefully scrutinized.

Set to take effect on Sept. 4, the new instructions follow a landmark ruling last year by the New Jersey Supreme Court that makes it easier for defendants to challenge the reliability of eyewitness identifications, the New York Times reports. The decision also required juries to be instructed on the variables that could lead to mistaken identifications.

Depositions

July 20, 2012 | The Law Office of Philip D. Cave

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

b‘ware

July 20, 2012 | The Law Office of Philip D. Cave

The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

We are getting there

July 19, 2012 | The Law Office of Philip D. Cave

Cloud computing, the cloud, saving trees.

Here’s a link to the new Florida court rules for service of documents on counsel in a case.

The next step shouldn’t be much harder – allowing public access to filings in the same was as PACER.

I object

July 19, 2012 | The Law Office of Philip D. Cave

We don’t have this come up too often because of the nature of our clients.

Luce v. United States, 469 U.S. 38 (1984), held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial.

On a different point entirely, don’t rely on old westerns like “High Noon” as a substitute for expert testimony on a relevant point. (h/t federalevidence.com)

Do you trust me yet

July 11, 2012 | The Law Office of Philip D. Cave

We all know that a defense counsel (and for that matter trial counsel) should not trust what comes out of a military drug lab, USACIL, or DCFL – I won’t rehash the problems over the years – which may well be continuing. While the problems have been substantial, DOD and courts have been quite happy to rely on the various “forensic” labs to put or keep people in jail.

So, why does this surprise me.

“Review Found FBI Hair Analysis Flaws in 250 Cases, But DOJ Didn’t Inform Defendants and Public (does this sound like USACIL or what)” says the ABA Journal.

Mil. R. Evid. 412

July 8, 2012 | The Law Office of Philip D. Cave

Evidence of past false complaints of sexual offenses by an alleged victim of a sexual offense is not within the scope of this rule and is not objectionable when otherwise admissible.

Appendix 22, p. A22-36, Manual for Courts-Martial, United States (2012).

Court-Martial Trial Practice

Acute Suggestibility in Police Interrogation: Self-Regulation Failure as a Primary Mechanism of Vulnerability, Deborah Davis, University of Nevada, Reno, Richard A. Leo, University of San Francisco – School of Law, 2012

Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012) Univ. of San Francisco Law Research Paper

Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012)
Univ. of San Francisco Law Research Paper