Court-Martial Trial Practice Blog

Techno-junkies

May 8, 2009 | The Law Office of Philip D. Cave

Been a while since I’ve posted something related to technology and this century. (I should note a red book sighting the other day at NLSO WNY.) Here is an interesting article. Of course those of us with the offending L1 GPS systems are quite aware of running into brick walls or cul-de-sacs due to inaccuracies. But what will the courts do.

Recalculating, Take 5: Is GPS Evidence Too Unreliable To Be Admitted Into Evidence? Professor Colin Miller posts about a number of items about reliability.

In the article, GPS Evidence Too Unreliable For Legal Purposes, Thomas Claburn provocatively opens by noting:

CAAF opinion – Campos

May 8, 2009 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Campos, __ M.J. ____ (C.A.A.F. 2009). The court was unanimous, although Judge Baker filed a separate concurring opinion.

This is an opinion that essentially discusses the inadmissible evidence thrust down an accused’s throat through a stipulation as part of a pretrial agreement. Basically, if you stipulate, even to inadmissible unreliable evidence you are likely stuck on a waiver theory. Although it does appear in this case that there was no consent to admissibility in the stipulation, just what the testimony would be. So the accused could have objected at trial. But CAAF found a knowing waiver of an objection.

Interestingly the concurring opinion addresses the most troubling issue in the case. The stipulated testimony of an expert, who’d not evaluated the accused, included a sentence recommendation which is verboten under United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989). Judge Baker resolved his qualms on the legal fiction that the sentence and the recommended sentence must have been serendipitous, because judge’s are presumed to know and apply the law correctly.

Up periscope

May 8, 2009 | The Law Office of Philip D. Cave

FLETC’s The Informer is out for this month. In addition to commentary on Ventris and Gant, here are a couple of summaries of two computer search cases.

10th CIRCUIT United States v. Otero, 2009 U.S. App. LEXIS 9001, April 28, 2009.

The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the Fourth Amendment particularity requirement that much more important. A warrant authorizing a search of “any and all information and/or data” stored on a computer is the sort of wide-ranging search that fails to satisfy the particularity requirement. Warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.

Gilding the lily

May 8, 2009 | The Law Office of Philip D. Cave

In some, non-U.S., police circles it’s called gilding the lily. But you are not supposed to get caught.

Officer Investigated For Perjury After DUI Case Falls Apart, By Dan Morse, Washington Post, 7 May 2009.

Although gilding the lily is really more subtle than this. It’s those oft remembered micro-facts months after the case, arrest, interrogation, etc.

Ethics and blogging

May 7, 2009 | The Law Office of Philip D. Cave

Here is a fascinating article and it references CAAFLog.

Lee has concerns about the potential for bloggers to impact the outcome of a case. She even suggests that advocates may go so far as to "game" a case, by writing publicly about it in a blog to spur the Court to grant cert or rule a particular way. Because Lee believes that bloggers could impact the outcome of a case, she argues that the legal profession should consider regulating ex parte blogging, despite the positive benefits — e.g., discovery of errors and stimulating public debate — that blogging brings to the table.

This comes from several sources, but see, “Do we need ethics rules on ex-parte blogging?” on Legal Blog Watch.

Irrelevant inadmissible testimony

May 7, 2009 | The Law Office of Philip D. Cave

I frequently find myself objecting to or submitting in-limine motions about law enforcement testimony on how they got involved in the investigation. That testimony usually has a lengthy recitation that includes inadmissible hearsay from people, alleged victims, alleged co-accuseds, other law enforcement personnel. You have multiple hearsay, 401, and 403 objections.

Here’s how the state of Maryland recently dealt with this issue and it’s instructive.

Parker v. State.

New CAAF case

May 7, 2009 | The Law Office of Philip D. Cave

CAAF has issued their opinion in United States v. Delarosa, __ M.J. ___ (C.A.A.F. 2009).

In this case the appellant was initially prosecuted in state court. As a result of a granted suppression motion the state prosecution was dismissed. It appears the state court judge found the civilian police did not “scrupulously” follow the suspects exercise of his rights. The Navy took the case and saw things differently. The state judge’s decision is not dispositive in court-martial because it’s a different jurisdiction, different trial, and different judge – not “law of the case,” and not even worthy of deference.

Unlike the state court judge the Navy judge found that the appellant’s confession to civilian police was admissible. The NMCCA agreed the statement was admissible as has a 4-1 majority of CAAF.

What of Watada

May 7, 2009 | The Law Office of Philip D. Cave

DOJ has dropped its appeal and Watada will not be retried because of double jeopardy concerns.

Here is a more detailed SeattlePI.com report.

Supreme Court

May 7, 2009 | The Law Office of Philip D. Cave

There will be no more oral arguments this term. The “watch” now relates to two pending decisions of importance to military justice practitioners.

The most important is when will the Supremes issue an opinion in Melendez-Diaz. Currently the law in the military for admission of forensic reports is Harcrow (for which M-D is on point). It is possible that the decision could also have some influence over the CAAF decision in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). I can only hope. I appreciate that I’m among the very few that believes Magyari wrongly decided because of the need to protect the military urinalysis program. Having had a case in which Dr. Pappa of the A.F. Drug Testing Lab testified on some specific points contradictory to some of the assumptions of the Magyari opinion I’m hopeful there might be some useful language out of M-D. Although as Chief Inspector Wilcox would say, “I’m not sanguine, not sanguine at all.”

Then there is the coram nobis case of Denedo, which will impact military writ practice and some CAAF juridisctional issues.

Rules of Evidence

May 6, 2009 | The Law Office of Philip D. Cave

Here is a follow-up on a proposed change to Fed. R. Evid. 804(b)(3), a good recommendation.

On April 23-24, 2009, the Advisory Committee on Evidence Rules, of the U.S. Judicial Conference, recommended a proposed amendment to Evidence Rule 804(b)(3). The proposed amendment would clarify that the corroborating circumstances requirement under the rule applies to statements against penal interest introduced by the government. This requirement already applies to statements admitted by the defendant. Some courts have held that the same requirement applies to statements offered by the government.

FederalEvidence.com