This seems to be the another post-Rodriguez case in which a petition has been denied.
No. 09-0030/AR. U.S. v. Josh R. RITTENHOUSE. CCA 20050411. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and in light of United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), said petition is dismissed as untimely filed.
EFFRON, Chief Judge (concurring in the result):
Are juvenile convictions subject to discovery and potential use at trial? — Yes.
| Mil. R. Evid. 609(d): Evidence of juvenile adjudications is generally not admissible under this rule. The military judge, however, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the military judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. |
Fed. R. Evid. 609(d): Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. |
Based on a fair reading of the Rule the answer is yes, if you can make a connection to the case.
Child abuse allegations: Can you make a credible argument that the child is making a false allegation of physical or sexual abuse. And we know that happens. If you can and the child and you believe the child has a juvenile conviction for a crime involving moral turpitude then the information should be discoverable and useable in cross-examination. Also, I would argue the prosecution has a self-executing [n.1] constitutional duty to turn that information over the to the defense in discovery.
Sexual assault allegations: Do you have a 18 year old enlisted person allegation a sexual assault, alleging sexual harassment, etc. Here again my view is that a juvenile conviction for a crime of moral turpitude is discoverable and admissible. The reason is the age of the “victim” at the time of the complaint and testimony.
Drug offenses: Do you have hee 18 year old narc or alleged co-accused against other alleged druggies. There’s a motive to lie and shift blame. Here again I think the closeness in time and the issue of credibility are the factors and reasons why juvenile convictions for crimes of moral turpitude are discoverable and useable. In drug cases another reason would be to show the witness lied on their enlistment contract or SF86.
Any offense: If there is an indication of a juvenile conviction then there is the possibility of a lie at the time of enlistment or filling out the SF 86. Here it’s not the facts of the conviction, it’s the existence of the conviction to show the witness lied under oath at the time of enlistment or completing the SF86 by failing to disclose or some other misrepresentation.
These are four examples, I’m sure there are more.
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n.1 I have and continue to argue that Brady, Kyles, and other cases create a self-executing duty on the prosecution to seek out and produce certain types of information. Contrary to arguments of some trial counsel, the defense does not need to make a discovery request for this information and the prosecution is required to seek it out.
Dog sniffs of the exterior of a vehicle are not searches under the Fourth Amendment. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007). "Such a dog sniff may be the product of an unconstitutional seizure, however, if the traffic stop is unreasonably prolonged before the dog is employed." United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006), [*6] cert. denied, 549 U.S. 1118 (2007) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Such a situation might typically occur when an officer unreasonably lengthens a roadside detention until another officer can bring a drug dog to the scene. . . . Having said that, the dog sniff was nonetheless impermissible if it was the result of an unconstitutionally prolonged traffic stop. See Peralez, 526 F.3d at 1119; Alexander, 448 F.3d at 1016.
United States v. Suitt, No. 08-2688, 2009 U.S. App. LEXIS 13769, at *5–6 (8th Cir. Jun. 25, 2009).
So, if you are stopped at the gate to the base and the MP and dog walk up to your car to sniff, the dog to do the outside, the MP to do the inside, then that should be OK.
Here is a link to CAAF’s new decision in United States v. Chatfield. The opinion is valuable for three issues: what is custody, what is coercion, and a reminder to consider jointness of military and civilian investigations.
When does a superiors words of actions create a custodial interrogation situation or make a person’s waiver of rights coercive?
[T]he Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” To answer the question whether an accused is in custody for purposes of Miranda, we consider “all of the circumstances surrounding the interrogation” to determine “how a reasonable person in the position of the [accused] would gauge the breadth of his or her freedom of action.” Stansbury v. California, 511 U.S. 318, 322, 325 (1994) (quotation marks omitted).
Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, Washington University Law Review, Vol. 87, 2009.
Here is a link to Professor Friedman’s initial thoughts on this case.
First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.
As previously stated, I think CAAF will stick with Magyari, and will likely find some language in the majority opinion. However, my sense is that the court will do so for the wrong reasons stated within the dissent by Justice Kennedy. Here is Professor Friedman’s comment on that – the political reasoning.
I particularly like this part:
Forensic evidence is not uniquely immune fromthe risk of manipulation. According to a recent study conducted under the auspices of the National Academy ofSciences, “[t]he majority of [laboratories producing foren-sic evidence] are administered by law enforcement agen-cies, such as police departments, where the laboratoryadministrator reports to the head of the agency.” National Research Council of the National Academies, Strengthen-ing Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter NationalAcademy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particularquestion related to the issues of a particular case, theysometimes face pressure to sacrifice appropriate method-ology for the sake of expediency.” Id., at S–17.
We have had this in all of the military labs over time – Drug Labs, USACIL, DCFL. Military labs have not been immune to error and/or manipulation.
Melendez-Diaz v. Massachusetts
This is the link to the Supreme Court Decision in M-D.
Here’s a link to the arguments before the court.
The lack of precision in the Daubert test for the admission of expert witness testimony serves as a source of its remarkable flexibility and also as a source of frustration to practitioners. It is clear that under Daubert, an expert witness need not be a star in his or her field to qualify. On the other hand, minimal preparation or training frequently is insufficient for expert qualification. The Fifth Circuit recently probed the question of just when an expert is “expert enough” in a medical malpractice case. The result reached by the circuit demonstrates that expertise is a matter that must be assessed within the context of the evidence presented and arguments that will be made at trial.
Court-Martial Trial Practice Blog
