Court-Martial Trial Practice

Applying Crawford’s Confrontation Right in a Digital Age

Jeffrey Bellin

Southern Methodist University – Dedman School of Law
May 10, 2012

Abstract:
Much of the recent commentary on the Confrontation Clause focuses on the past. Commentators (and Supreme Court Justices) evaluate the evolving jurisprudence by comparing the confrontation right articulated in Crawford v. Washington and its progeny to the right that existed in 1791. This Symposium Essay shifts the focus to the future, exploring how the Supreme Court’s new Confrontation Clause jurisprudence will operate in a world where communication is increasingly informal and electronic.

The inability to remember in court, what about it?

If the witness testifies in court that the traffic light was green, and in a prior statement to police they said it was red.  That’s a prior inconsistent statement.  The witness may be impeached.  Asked the “on x to officer X, did you say red,” get the yes, move on; or get the no and offer the inconsistent statement.

But what if the witness says I don’t remember or I think it was amber, and you have a prior statement that the witness told the police officer it was red.

Paul C. Giannelli (Case Western Reserve University School of Law) has posted The 2009 NAS Forensic Science Report: A Literature Review (48 Crim. L. Bulletin 378 (2012)) on SSRN. Here is the abstract:

In February 2009, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (2009). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”
Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious deficiencies have been found in the forensic evidence used in criminal trials.” Both the Senate and the House held hearings, and a bill was introduced in Congress. In addition, the President appointed a committee on forensic science.
Several law schools held conferences on the report, and a number legal journals published symposia. Law review articles variously described the report as a “blockbuster,” “a watershed,” “a scathing critique,” “a milestone,” and “pioneering.” This essay briefly discusses some of these articles as well as aspects of the congressional hearings.

Here is a link to the new “order” requiring sexual assault cases to be disposed of at at least the O-6 level.

I have from time to time filed writs of error coram nobis, most recently in United States v. Graner.

Courtesy of CrimProfBlog here is an excellent case reviewing the writ of error coram nobis.  The court discusses the history of the writ and the three part test to considered.  Note they cite extensively to United States v. Denedo.

The  writ  of  error  coram  nobis  is  of  ancient  lineage, tracing its roots to sixteenth century English common law.  See Sawyer,  239  F.3d  at  37.  Its  original  purpose  was to  promote respect for the judicial process by enabling a court to correct technical  errors  in  a  final  judgment  previously  rendered.  See United States v. Denedo, 129  S. Ct.  2213,  2220 (2009).  In the United States, the office of the writ has expanded well beyond the reopening of a final judgment to correct technical errors.  See id.  In federal criminal cases, the writ is now available as a remedy of last resort for the correction of fundamental errors of fact or law.  Trenkler v. United States, 536 F.3d 85, 93 (1st Cir. 2008).

Not sure, that’s the conclusion of a study done by the National Research Council.

h/t Prof. Berman at Sentencing Law & Policy

You need to know about collateral effects of a court-martial conviction:

Voting

Firearms

The government wants to offer data from a computer or some other mechanical or recording device.

Can a NCIS agent testify about the contents.  No.  That violates the best evidence rule, Mil. R. Evid. 1001.

Courtesy of federalevidence.com here is a link for a recent case dealing with GPS information:

Not sure the value – but I’m tracking the impending release of this publication:

Apparently written for civilian attorney’s representing current or former military personnel, it may well have resources, ideas, and guidance for the military practitioner.

Major Evan Seamore, Chief of Military Justice for the U.S. Army Maneuver Center of Excellence, Fort Benning, GA, is in there in Chapter 13.

Quite a few cases, especially the sexual assault ones arriving recently have involved text and chat messages as potential evidence against the client.

As is to be expected, most of the time the investigators do not seize and clone the phone to preserve evidence (although I am dealing with one CID office at Fort Lee that has done that with one of several phones).  This is a failure to investigate, and as always is to be expected.  What they usually do is photograph the “relevant” by their definition texts on the phone screen and nothing more.

Keep in mind that Mil. R. Evid. 106 AND 304(h)(2) apply to these texts and chats.