Court-Martial Trial Practice Blog

Potential training opportunity — Psych & Miranda.

February 28, 2009 | The Law Office of Philip D. Cave

Assessing Malingering and Miranda Rights Waiver
April 24 (VA)

If

you want to get away from the cold and visit a pretty place, you might

A resource.

February 28, 2009 | The Law Office of Philip D. Cave

Reference Manual on Scientific Evidence (2d ed. 2000), Federal Judicial Center. A third edition is in the works.

Death by causes.

February 27, 2009 | The Law Office of Philip D. Cave

A little off message, but I suppose this item could be squeezed into previous posts about forensics.

No longer "death by natural causes": The Associated Press writes,

"police and medical examiners who thought a man died of natural causes

CAAF Judicial Conference.

February 27, 2009 | The Law Office of Philip D. Cave

The full agenda for this year's Judicial Conference is now available on line.

Law enforcement lay and expert testimony, potential for confusion.

February 27, 2009 | The Law Office of Philip D. Cave

United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006).

Federal Evidence Review draws attention to this case on the issue of law enforcement testimony. The case involved drugs. In military prosecutions we have similar situations where law enforcement testifies about drugs.

The circuit concluded that plain error resulted: “We conclude that permitting police officers to testify as experts in their own investigations and give opinion testimony on the significance of evidence they have collected, absent any cautionary instruction, threatens the fairness, integrity, and public reputation of judicial proceedings, regardless of whether the defendant is actually innocent.” Lopez-Medina, 461 F.3d at __.

More on Collateral Consequences

February 24, 2009 | The Law Office of Philip D. Cave

Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations, A Collaboration of the American Bar Association Commission on Effective Criminal Sanctions and the Public Defender Service for the District of Columbia, January 2009. The Introduction says:

This study collects and describes the collateral consequences of a criminal conviction that arise under federal statutes and regulations. A joint project of the ABA Commission on Effective Criminal Sanctions (Commission) and the Public Defender Service for the District of Columbia (PDS), it is an outgrowth of both entities’ work on the effect of a criminal record on the availability of a wide range of benefits and opportunities, which in turn determines a person’s likely ability to rebuild his or her life after a criminal conviction. While the study is first and foremost a compilation, and its presentation primarily descriptive rather than analytical, we hope that it will serve as a useful tool for criminal justice practitioners (including defenders, judges, and prosecutors); for persons seeking information about the legal rights and responsibilities of people who have a conviction record; and for advocates, legislators, and policymakers in determining which collateral consequences are reasonable and appropriate responses to public safety concerns, and which are not and what can or should be done to avoid or mitigate them.

The study is almost 250 pages long so I've not had a chance to read it all yet. However, it does appear to be responsive to many of the questions a military client would have who is facing court-martial, or who has been convicted.

3rd party hearsay in public documents

February 24, 2009 | The Law Office of Philip D. Cave

In a cautionary tale, Prof. Colin Miller, If You Were In The Public Eye: Kentucky Court Finds That Third Party Statements Were Properly Excluded From A Public Report, EvidenceProf Blog, 24 February 2009.

Professor Miller draws attention to a Kentucky case which has relevance to Mil. R. Evid. 803(4), the public records exception, and potentially Mil. R. Evid. 803(6), (8).

When you have hearsay within hearsay offered as an exception to hearsay, that "evidence" must be independently admissible. Thus a police report containing a witness's description of an event is still hearsay and must meet the hearsay rule. If the third party statements aren't independently admissible, then they must be redacted.