Prof. Colin Miller has an interesting post about prosecutorial discretion during the course of trial.
Besides getting a conviction and an appropriate sentence, a secondary gain of the prosecutor is to have the case affirmed on appeal. Affirmance means a guilty person doesn’t walk or get a new trial.
In the post Prof. Miller refers to a successful prosecution objection excluding “compelling defense evidence,” on what he terms a technicality. He closes his post:
Senator Gillibrand is not happy.
Here is one of her unsubstantiated complaints. I am quite sure that some of those committing sex offenses have done so before, and with predatory behavior. But casting the vast majority of he said/she said cases as predatory men assaulting angelic waifs who can’t care for themselves is sexist and engaging in gender politics.
“More reporting is not the end game,” Gillibrand said. “Justice and removing recidivist predators from the military so they cannot commit more crimes to arrest the problem is the end game.
Human lie detector’s not admissible, still, a strong circuit trend. This is consistent with military appellate case law.
With expert testimony admitted on a wide range of issues under FRE 702, what limits are there to expert testimony on the credibility of the defendant? As noted by the Tenth Circuit, a consensus in disallowing this expert testimony has emerged among the circuits; plain error resulted from the admission of this expert testimony requiring reversal of the conviction, inUnited States v. Hill, _ F.3d _ (10th Cir. April 28, 2014) (No. 12-5154)
One area of expertise may involve determining whether a witness is credible. Certain specialized training and techniques have been developed to gauge the credibility of a witness during an interview. While this expertise may be useful and employed during an interview, it is generally inadmissible at trial under FRE 702. The Tenth Circuit reviewed and reinforced its exclusion of such expert testimony, finding such exclusion the practice of other circuits as well. While there was no objection lodged at trial to the expert testimony, the circuit found the admission of this expert testimony constituted plain error.
With the ongoing politics surrounding sexual assault in the military, and whether the commander should remain as the disciplinary decision maker, the AF has done an interesting review of (convictions).
After a spate of sex-related incidents last year, the Air Force reviewed all courts-martial from the previous three years — more than 2,400 cases — and found 25 instances in which a commander disagreed with a judge advocate general’s recommendation, Air Force Chief of Staff Gen. Mark Welsh said.
I am assuming they mean that the CA granted either clemency or dismissal of one or more findings post-trial. The article goes on to say:
U.S. District Court (Northern District of Iowa)
Congress continues to tinker, rather than take a complete overview and make rational change to the UCMJ – the politics continue. Meanwhile, we have to deal with the gruel they dish out.
So, keep an eye on any changes to the statute of limitations for various sex related offenses. AND, keep an eye on any potential increases to punishments.
In Stogner v. California, 539 U.S. 607 (2003), the United States Supreme Court held that California’s retroactive extension of the statute of limitations for sexual offenses committed against minors was an unconstitutional ex post facto law. This is interesting because this would seem to apply to the California statute, if the offense has a short statute of limitations. In particular, the Court found the California law proscribed by two categories of laws designated as ex post facto in Calder v. Bull, 3 U.S. 386 (1798):
What the witness sees and remembers is a function of many factors specific to that witness and the crime scene: the witnesses ability to see without glasses, the absence of any lighting at night. What complicates matters is the deliberate or unintentional police actions (and actions of others – see ‘memory conformity’ issues).
The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.
The problem is that decades of studies show eyewitness testimony is right only about half the time – a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.
There appear to be ten fairly consistent reasons for a wrongful conviction, according to a NIJ researcher.
In his series of pods Dr. Gould discusses the reasons (transcripts are available at the pod).
I often, always, talk about confirmation bias in connection with military sexual assault investigations, through the 32, and through the referral process, and potentially at trial. Dr. Gould calls it “tunnel vision.” In another portion of the pod Dr. Gould addresses discovery failures.
Center for Prosecutor Integrity.
The Center for Prosecutor Integrity is the nation’s only organization with a sole focus on enhancing prosecutorial ethics. The goals of the Center are to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions.
CPI sponsors the Registry of Prosecutorial Misconduct, supports media efforts, and partners with other groups to achieve policy reforms at the state and national levels. As a public interest law initiative, CPI does not accept individual cases.
Congress, commanders, and others ignore the effects of false sexual assault allegations. They don’t fit the meme. They are quite willing and happy to ignore such happenings or possible happenings.
16-year-old commits suicide after being falsely branded a rapist by drug-dealing gang. A schoolboy hanged himself after he was falsely branded a rapist by fellow pupils after pulling out of a playground drug dealing racket, an inquest heard.
Have wrongly military accused’s committed suicide as a result of false allegations – I know of at least one, and one possible one. My colleagues know of others.
Court-Martial Trial Practice Blog
