We are all familiar with Rock v. Arkansas, 483 U.S. 44 (1987), in which a per se bar against hypnotically refreshed testimony of an accused was held unconstitutional. Prof. Colin Miller reports that the state of Illnois finds that a per se bar can be applied to witnesses other than the accused.
Here is an interesting, very fact specific, federal case in which the forensic examination of a computer for child pornography was suppressed. The accused had admitted possessing child pornography, showed the police his computer, but refused a search of it. The police took the computer. Then it sat around for about three weeks before the police got a search warrant. The court does caution the case to be fact specific.
United States v. Mitchell, __ F.3d ___ (11th Cir. 2009).
Here is an article brought to our attention by FourthAmendment.com.
A thoughtful article about the Supreme Court’s "seizure" doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51 (2009).
Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The U.S. Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt “free to leave” or otherwise to terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only upon their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that although empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This Article presents the first empirical study of whether people would actually feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this Article concludes that people would not feel free to end their encounters with the police. Under the Court’s current standard, respondents would be seized within the meaning of the Fourth Amendment in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.
There are two items in this month’s Journal of Law and Human Behavior with value and relevance to trial practice: an item on interviewing, and an item on how juries make decisions. Here are the titles, more later.
Divine, Buddenheim, Houp, Studebaker, and Stolle, Strength of Evidence, Evidentiary Influences, and the Liberation Hypothesis, Data from the Field, 33(2) J. Law & Human Behavior, 136 (2009). Easy cases are easy, but what influences a jury to decide in cases where the evidence is not clear and overwhelming – close cases?
Vrij, Leal, Granhag, Mann, Fisher, Hillman, and Sperry, Outsmarting Liars: The Benefit of Asking Unexpected Questions, 33(2) J. Law & Human Behavior, 159 (2009). Liars prepare to be questioned and they anticipate questions. So what happens when you ask a question they haven’t expected, anticipated, and thus prepared for.
With the increasing release of information regarding the who, what, when, where, of torture approvals comes the need to relook at the court-martial convictions of the low level military personnel who executed the policy. A policy that at the time of the trials was denied, hushed up, or ignored. We don’t have to excuse them, but the junior military personnel once again came up on the sort end of the stick.
So, Daniel Nasaw, Report vindicates soldiers prosecuted over Abu Ghraib abuses, lawyers say. The Guardian, 22 April 2009.
Often times the “foreign papers are more accurate, timely, and detailed.” They have yet to be coerced or lured into blatting [n.1] the government agenda.
The Coast Guard has issued an opinion in United States v. McDonald, __ M.J. ___ (C.G. Ct. Crim. App. April 24, 2009). This opinion discusses why the standard trial counsel sentencing argument in drug pop cases is typically erroneous. I call it the typical absence of proof problem for trial counsel.
The standard for determining the appropriateness of an argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused. United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).
Appellant relies on United States v. Skidmore, 64 M.J. 655 (C. G. Ct. Crim. App. 2007) to support the conclusion that the argument at issue amounts to plain error. In Skidmore, this Court held that it was plain error for the trial court to hear evidence and argument on the fact that the accused was a boarding officer because that fact was not “directly related” to the single drug use offense charged in that case. Id. at 661 (citing United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F 2007)). Skidmore provides guidance to trial counsel [and defense counsel] presenting and arguing [or objecting to] evidence in aggravation in drug cases,
A Naval Academy midshipman is scheduled to be court-martialed Tuesday at the Navy Yard in Washington on theft and related charges, the school announced Friday. Midshipman 1st Class Julia Kaelberer, of Rialto, Calif., has accepted a plea agreement and will face charges of theft, unlawful entry, making false official statements and conduct unbecoming an officer, according to Judy Campbell, a spokeswoman for the Naval Academy. The academy did not release further details about the case.
Baltimore Sun, 25 April 2009.
I found this unusual. You don’t normally here of this type of crime coming out of any of the service academies.
The US Marine acquitted on appeal in a high-profile rape case has left the Philippines, but he could face court martial in the US, officials said.
"Following the decision of the Philippine Court of Appeals, Daniel Smith departed the Philippines under the authority of United States military officials," the US embassy said in a statement.
Calling the rape case "long and difficult," the US embassy said Smith was detained for more than three years in its premises in compliance with the Visiting Forces Agreement, which governs the conduct of US troops in the Philippines.
At 08.20, 24 April 2009, CAPT Kevin J. Barry, USCG (Ret.) became an honor graduate of life.
His death is a loss not just to his family and friends but to the military justice community as a whole. Kevin worked hard and long as an advocate for his clients, for the system, and an advocate for changes in military justice. He spoke with passion, with clarity, and with knowledge. His views were not always accepted, but they are universally respected as is he as a person. Kevin practiced the profession of law, not the business.
For many of us he was a mentor, an inspiration, and a good friend in our professional lives. For some of us his inspiration and courage went well beyond that into our personal lives. Watching and listening to him in his struggles against cancer gave others hope and the will to fight their own struggles.
Court-Martial Trial Practice Blog
