Court-Martial Trial Practice Blog

On the reliability of “expert” testimony — the ears (don’t) have it.

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

It app-ears that ear print comparisons have been advocated as a method of identifying a perpetrator. But, it app-ears that the British courts are giving the so-called expert an earful of doubt.

Andre A. Moenssens, Another Ear Print Conviction Reversed! (Prof. Moenssens is one of several law professors to follow on issues of forensics and evidence. A lot more can be found at Forensic-Evidence.com.

Credibility is always an issue.

Is the Intoxilyzer 5000 racially and genetically biased?

March 15, 2009 | The Law Office of Philip D. Cave

There may be a legitimate question that the Intoxlyzer 5000 does discriminate against African-Americans. This test is in use throughout much of DoD. It seems at least worth researching and filing a Houser motion in regard to this technology if your client is African-American, and perhaps if the client is a woman. See United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993), which sets out six factors a judge should use to determine the admissibility of expert testimony. In my view, Houser can be used also to challenge the actual “science” underlying testimony for something such as a breath-test machine. In United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999), the Court of Appeals for the Armed Forces makes specific the application of the Daubert factors under a Houser analysis.

Colin Miller, KKK In A Box?: Connecticut To Replace Controversial Intoxilyzer 5000 With Equally Controversial Alcotest 7110 MKIII-C, EvidenceProf Blog, 15 February 2009.

The basis for this claim is that that “Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and with his own research determined the Intoxilyzer 5000 does not adequately test black men.” (Specifically, according to Hlastala, the lung capacity of an African-American male is approximately 3% smaller than that of a Caucasian. “Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, [and] the Intoxilyzer 5000 results are inflated by a factor of 3 percent,” Hlastala concluded).

Private looking or search subject to the Fourth Amendment?

March 15, 2009 | The Law Office of Philip D. Cave

In considering whether conduct of a private citizen is subject to the Fourth Amendment, our court considers "whether the government had knowledge of and acquiesced in the intrusive conduct; whether the

citizen intended to assist law enforcement agents or instead acted to

further his own purposes; and whether the citizen acted at the

Predisposition in child sex sting operations.

March 15, 2009 | The Law Office of Philip D. Cave

"In Internet 'sting' cases such as this," the issue of "what a defendant's state of mind was immediately prior to his contact with a sexual target purporting to be a minor is routinely a serious point of contention. We call the issue one of 'predisposition,' and it is primarily a question of fact." United States v. Curtin, 489 F.3d 935, 951 (9th Cir. 2007) (en banc). Concerning such predisposition, "contextual and circumstantial evidence becomes acutely relevant to a defendant's material state of mind 'prior to his contact' with the object of his sexual attention and . . . such evidence is not only admissible, but may be critical." Id. at 952.

Here, the district court did not err in ruling that the ten images depicting child pornography were fairly attributable to Knowles. Forensic testimony indicated that the ten images at issue were kept in the same "AOL Downloads" folder found on Knowles' laptop as a photo depicting "Sassy13 Sarah" sent to Knowles by FBI Special Agent Brillhart, and that storing images in that folder involved a series of interactive steps requiring the user's management (viz., clicking on "save" to download an image attached to an email into the designated folder). This process contrasted with the routine automatic downloading and temporary "caching" of files on the laptop's hard drive by web browser software without any user participation or choice. (emphasis added.)

Nor did the district court err in ruling that the ten images were relevant to the issue of Knowles' intent, in particular his predisposition for sex with underage girls. The fact that Knowles had saved images of child pornography to his "AOL Downloads" folder tended to show such predisposition, in turn supporting an inference that his intent was to travel to Portland [*4] to attempt to entice a minor to engage in sexual activity. As to Knowles' predisposition, the probative value of these ten images outweighed their potential prejudicial effect, and the district court did not abuse its discretion by admitting them.

Search warrants and staleness – CP cases.

March 14, 2009 | The Law Office of Philip D. Cave

United States v. Smither, No. 09-3-KSF, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009), is worth the read for a refresher on challenging search warrants because the information is stale. Those of us who have tried are well aware that it's almost impossible to have a child pornography warrant suppressed for staleness. The author at fourthamendment.com comments.

Most cases just dispose of this argument simply. This opinion explains

it far better. To my knowledge no child porn defendant has won a

Do military (DoD) lawyers know the meaning of “Brady material?”

March 14, 2009 | The Law Office of Philip D. Cave

Personally, from experience, I'm not sure they do. However, Judge Emmett Sullivan, of the D.C. for D.C. doesn't think so.

Here is an item on The BLT: The Blog of LegalTimes, Judge Threatens Justice Lawyers With Contempt Over Detainee Documents, 13 March 2009.

So-called Brady rules require prosecutors to hand over

CAAF grant.

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

Here is an interesting CAAF grant in a Coast Guard case.

No. 08-0719/CG. U.S. v. Webster M. SMITH. CCA 1275. Review granted on the following issue:

WHETHER THE MILITARY JUDGE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS BY LIMITING HIS CROSS-EXAMINATION OF [SR], THE GOVERNMENT'S ONLY WITNESS, ON THREE OF THE FIVE CHARGES.

Discipline is the cure.

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

Kevin Maurer, Wounded soldier's care probed, FayObserver.com, 11 March 2009.

If this report is believed, injured and wounded soldiers in medical holding company's are disciplined at a higher rate than line company's.

Apparently, it is not an excuse for a failure to go that your prescribed medication for you injury or illness causes you to be late for formation. Seems to me there's at least the possibility of a defense based on impossibility or something similar.

New CAAF cases.

March 12, 2009 | The Law Office of Philip D. Cave

Two new CAAF cases have been put up on the website.

United States v. Stephens, __ M.J. ___ (C.A.A.F. Mar. 12, 2009). The prosecution called the victims father to talk about the effect the trial had on her.

Appellant, citing United States v. Mobley, 31 M.J. 273 (C.M.A. 1990), United States v. Carr, 25 M.J. 637 (A.C.M.R. 1987), and Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001), argues that the father’s testimony was an impermissible comment on Appellant’s right to plead not guilty, confront the witnesses against him, and put the Government to its proof, and hence constitutional error.

More of Kreutzer

March 12, 2009 | The Law Office of Philip D. Cave

Background on the DP (courtesy of CAAFLog):

Since the military death penalty was reinstated in 1984, there have

been 15 known military death sentences. Two were set aside in the