|

CAAF has decided United States v. Collier, __ M.J. ___ (C.A.A.F. 2009).

This case presents the question whether the military judge erred in granting the government’s motion in limine prohibiting Appellant’s defense counsel from cross-examining HM2 C, the main Government witness, about an alleged homosexual romantic relationship between her and Appellant and from introducing any evidence of such a relationship.1 While the military judge did permit cross-examination about a close friendship, the defense that Appellant wanted to present was that HM2 C framed Appellant for larceny as a result of their romantic relationship ending badly. Because of this ruling, Appellant was free only to assert the motivation of an angry friend rather than a disappointed lover; as the Government then argued in its closing, the motivation of an angry, vengeful friend “strains all logic; it’s just not credible.”

The military judge’s ruling prevented Appellant’s counsel from fully exploring HM2 C’s bias and motive to misrepresent the truth, and precluded Appellant from presenting her theory of the case. Under the facts of this case, this was a violation of Appellant’s Sixth Amendment right to confront a witness against her.

Continue reading

|

Here is a good case offered by Prof. Colin Miller, Under Construction: Ninth Circuit Resolves Interplay Between Rules Of Evidence 608 And 609, 17 May 2009.

As the 9th and Professor Miller note this was a close issue.

And here is another treatment of the case at FederalEvidence.blog,“Collateral Details” Of The Defendant’s Prior Conviction Results In Reversal.

|

Here’s a new law review article to go along with my rants about how prosecution expert and forensic evidence can be biased, it’s difficult to deal with, and the system allows the problem.

Volume 95, Issue 1
Brandon L. Garrett and Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) View PDF

This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants—82 cases or 60 percent—forensic analysts called by the prosecution provided invalid testimony at trial—that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by seventy-two forensic analysts called by the prosecution and employed by fifty-two laboratories, practices, or hospitals from twenty-five states. Unfortunately, the adversary system largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief.

Continue reading

|

The University of Pennsylvania PENNumbra has an interesting dialogue about plea bargaining, the unlimited unregulated powers of prosecutors, and those who might be innocent, but plead guilty anyway.

There are three points of view.  Of the most interesting seems to be that innocent accused’s may plea guilty to avoid a wrongful conviction and increased sentence risk; and that’s a good thing for society and the innocent accused.

|

We talk a lot about appellate issues and whether they should be raised.  Of course in the military we have United States v. Grostefon.  There is also talk about changing the post-trial process and possibly placing more responsibility on the trial defense counsel to initially raise appellate issues (a broadening of Palenius).  So here is an interesting little case on how a federal district court resolves appellate issues under Anders.

After a jury trial, Jeffery Carter was convicted of distributing crack, see 21 U.S.C. § 841(a)(1), and the district court sentenced him to 180 months in prison. Carter filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal. Because counsel’s supporting brief is adequate, we limit our review to the potential issues identified in counsel’s brief and Carter’s Circuit Rule 51(b) response to his lawyer’s motion to withdraw. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

United States v. Carter, No.08-1419, 2009 U.S. App. LEXIS 9939, at *1 (7th Cir. 2009).

Contact Information
1629 K St NW
#300
Washington, DC 20006
Phone: 703-298-9562Toll Free: 800-401-1583Fax: 703-997-6076

This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2014 – 2025, The Law Office of Philip D. Cave
JUSTIA Law Firm Blog Design