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For those of us who do read crime noir novels for entertainment, here is an interesting perspective.  This all quote from Law.com: Legal Blog Watch.
Cloak-and-Dagger Justice

Humphrey_Bogart2 Perhaps it was a dark and stormy night when Scott W. Stucky was sworn in as a judge of the U.S. Court of Appeals for the Armed Forces. It took place on a rain-slicked pier outside an abandoned warehouse. He wore a trenchcoat and a fedora with its brim turned down. A mysterious woman looked on, dressed all in black. The man who presided stood in a shadow, a diamond ear-stud reflecting a distant light.

Or perhaps not. But as Michael Doyle observes at the blog Suits & Sentences, Stucky is the latest federal judge to write an opinion in the hard-boiled noir style epitomized by authors such as Dashiell Hammett and Raymond Chandler. "There was something odd about the electric razor in the bathroom," the opinion begins. "[She] typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia."

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Ted Sampsell-Jones, Making Defendants Speak, (Download PDF) 93 Minn. L. Rev. 1327 (2009).

First, as a matter of constitutional criminal procedure, the Supreme Court should overrule . . . (you’ll be surprised what he suggests here). Second, as a matter of evidence law, courts should abandon the Gordon v. United States test for Rule 609, and should admit fewer prior convictions for impeachment. Third, as a matter of sentencing law, courts should not impose perjury enhancements based on a defendant’s trial testimony. These three reforms would help to put American criminal law back on the right course by making more defendants speak.

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First Circuit focuses on relevance tests to assess the admission of out-of-court statements offered for a non-hearsay purpose; ultimately the error was harmless, in United States v. Benitez-Avila, __ F.3d __ (1st Cir. June 9, 2009) (No. 08-1463).

Trial counsel often want to call the investigator to lay the groundwork on how the investigation was started, how it progressed, and how it lead to the accused.

There is a basic rule that evidence that is hearsay for one purpose may still be admissible for another non-hearsay purpose.  However, the non-hearsay purpose must also be closely examined for relevance and Mil. R. Evid. 403 purposes.  In Benitez-Avila the hearsay nature of the admitted testimony was easily dealt with under Fed. R. Evid. 801.  The court then went on to find error under Fed. R. Evid. 403.

The proposition that hearsay does not include statements showing context or background and not received for the truth of what they said should not be understood to mean that any kind of statement, no matter how prejudicial, may be introduced if it shows what might loosely be described as context or background. First, the aspects of ‘context’ or ‘background’ for which the evidence is offered must be relevant. And even if it is relevant its probative value in relation to the nonhearsay purpose must not be ‘substantially outweighed by the danger of unfair prejudice’.

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The Best Of Everything: Fourth Circuit Erroneously Finds That Best Evidence Rule Doesn’t Apply In Firearms Appeal

Federal Rule of Evidence 1002, the Best Evidence or Original Document Rule, indicates that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

As I tell my Evidence students, this Rule is oft misunderstood, not only by law students, but also by lawyers and even judges. The recent opinion of the Fourth Circuit in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), is a good example of judges completely misunderstanding the Best Evidence Rule.

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What Are Your Intentions?: Sixth Circuit Finds No Plain Error In DEA Agents Drug Quantity Testimony

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.

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The Volokh Conspiracy is reporting on an interesting obscenity conviction in the Fourth Circuit.

The cautionary tale – do not blog, chat, email, or in any other way discuss through the internet your secret fantasy of what you’d like to do with a child sexually.  Besides being a very very obnoxious, unwholesome, and disgusting idea, it can get you prosecuted and convicted.

Obscenity Conviction for Adult-to-Adult Noncommercial E-mail About (Fantasy) Sex With Children:

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A reporter for The San Diego Union-Tribune will have to testify as a defense witness in a court-martial, a military judge ruled Monday.

In his 12-page ruling military judge Cmdr. Kevin O’Neill rejected Rogers’s attempts to assert a First Amendment-based reporter’s privilege and protection under the California shield law. O’Neill said he did not need to answer the question of whether a First Amendment-based privilege exists in military court or whether California’s shield law applies because the privilege would be overcome anyway in this case.

Reporter ordered to testify at court-martial.

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In prosecution for first-degree murder and for using a firearm in the commission of a crime of violence, testimony that defendant threatened two percipient witnesses at the scene of the crime were admissible under FRE 404(b) to show consciousness of guilt, in United States v. Begay, _ F.3d _ (9th Cir. June 1, 2009) (No. 07-10487)

Other act evidence under FRE 404(b) is admissible for other than propensity purposes, such as for showing a defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This list is not exhaustive and occasionally other act evidence is admissible for other purposes, such as to show a defendant’s consciousness of guilt on the charged crime (emphasis added).

FederalEvidence blog.

Don’t forget that in the right case the defense should be introducing, arguing for, and asking for instructions on consciousness of innocence.  As of yet no military or federal court accepts this theory when it comes to instructions.  However, there are plenty of state court rulings on “consciousness of innocence.”

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