Court-Martial Trial Practice Blog

Speak

June 16, 2009 | The Law Office of Philip D. Cave

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.

Just laying the groundwork your honor!

June 16, 2009 | The Law Office of Philip D. Cave

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’.

The best evidence they can testify about.

June 16, 2009 | The Law Office of Philip D. Cave

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.

Pushing the envelope?

June 16, 2009 | The Law Office of Philip D. Cave

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.

H.R. 569

June 16, 2009 | The Law Office of Philip D. Cave

Here is Gene Fidell’s comment on H.R. 569, which asks be named in honor of former Chief Judge Robinson O. Everett.

CLE Opportunity.

June 16, 2009 | The Law Office of Philip D. Cave

If you’re a lawyer looking for first-rate appellate CLE, then please consider registering for the DRI Appellate Advocacy Seminar, to be held November 5–6, 2009 in La Jolla, California (near San Diego), at the Hilton La Jolla Torrey Pines.

the (new) legal writer.

Emailers and fantacists beware.

June 16, 2009 | The Law Office of Philip D. Cave

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:

Reporter must testify.

June 16, 2009 | The Law Office of Philip D. Cave

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.

Consciousness

June 13, 2009 | The Law Office of Philip D. Cave

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.”

A Crawford case of interest

June 13, 2009 | The Law Office of Philip D. Cave

While we are all waiting with bated breath – now Denedo is out – for Melendez-Diaz, Professor Freidman has posted on an interesting Supreme Court of Michigan case interpreting Crawford/Davis. People v. Michigan, (Mich. 10 June 2009). Interestingly, the prosecution in the case asserted the statements of the victim were admissible as excited utterances, and affirmatively waived any proffer as a dying declaration. Here is the nub of Professor Freidman’s comment agreeing with the court’s decision to suppress the statements.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said: