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NDAA National Prosecution Standards – 2nd Edition

Download Publication

This
is the most recent version of the National Prosecution Standards by the
National District Attorneys Association. The standards are currently
being considered for possible revision and will soon be available for
sale on this Web site.
It is improper for a trial counsel to interject herself into the proceedings by expressing a "personal belief or opinion as to the truth or falsity of any testimony or evidence." United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980) (quoting ABA Standards, The Prosecution Function, § 5.8(b) (1971)).

United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005).

There are also standards for the defense function.

The full ABA Criminal Justice Standards are available on-line.

Do No Wrong: Ethics for Prosecutors and Defenders

By Peter A. Joy and Kevin C. McMunigal

This book is designed to help provide guidance for resolving ethical issues such as:


-How far may the prosecution or defense go in using religion in closing argument?

-Does the defense lawyer or the client decide whether to raise an insanity defense or to present mitigation evidence?

-Is the defendant entitled to Brady material prior to entering a plea bargain?

-When may the defense introduce evidence of an alternate perpetrator or
SODDI (the "some other dude did it") defense? (Jan. 2009, 205 pages).

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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 __.

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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.

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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.

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