Court-Martial Trial Practice

Not an uncommon trial counsel theme when a client has testified.  Recently, the

Fourth Circuit considers a prosecutor’s closing argument based on the trial evidence in which the defendant “lied” under oath; circuit notes again that this argument is improper, although the error in this case did not constitute plain error, in United States v. Woods, 710 F.3d 195 (4th Cir. March 18, 2013) (No. 11-4817)

What concerns are raised when a prosecutors argues, based on the trial evidence, that the defendant “lied” at trial? The Fourth Circuit provided an assessment of this issue, highlighting two risks from this type of argument.

Be it context, or something else such as human lie detector testimony, prosecutors often seek to go too far with law enforcement testimony.

Second Circuit highlights two important issues concerning law enforcement testimony: first, an officer may not provide lay testimony that is based upon “specialized training and experience”; and second, expert opinion testimony is not permitted on the defendant’s intent, in United States v. Haynes, _ F.3d _ (2d Cir. Sept. 5, 2013) (No. 12–626–cr)

h/t federal evidence review

Does this happen – has it happened to you?

The complaining witness has a Facebook or other social media page, or texts on their phone, or emails — and they complaining witness decides to delete them (or does so because law enforcement or a “victim advocate” tells them to).

Why is this not spoilation of evidence and why can’t you get an adverse inference instruction, especially when you can show relevance.

After an extensive investigation involving numerous intercepted recordings, to what extent can an agent provide opinion testimony about the meaning of the recordings? In reversing a conviction for a murder for hire conspiracy, the Sixth Circuit joins five other circuits (Second, Fourth, Eighth, Ninth and D.C.) in disallowingFRE 701 to permit an investigating officer to provide lay opinion testimony as to the meaning and significance of the recorded conversations of the conspirators; an insufficient foundation had been established to show the witness had first hand knowledge which would be “helpful in resolving issues” in the case; case highlights a split in the circuits, in United States v. Freeman, _ F.3d _ (6th Cir. Sept. 13, 2013) (No. 11-1798)

Law enforcement lay opinion testimony must meet the requirementss of FRE 701. The rule imposes three requirements: (1) the lay opinion must satisfy the “requirement of first-hand knowledge or observation,” under FRE 701(a); (2) the lay opinion must be “helpful in resolving issues” in the case, under FRE 701(b); and (3) the testimony but “not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702” under FRE 701(c). The circuits have taken differing positions as to the satisfaction of the first two requirements in the context of law enforcement lay opinion testimony. The Sixth Circuit recently reviewed this authority and noted a division among the circuits as to admission of law enforcement lay opinion testimony.

h/t federal evidence review

A trial is intended to be a win at the trial level.  Good trial lawyers never litigate just for an appeal, but at the same time must remember to preserve error for appellate review in case.

The Military Rules of Evidence allow for admission of obectionable hearsay (evidence) in some situations.  Usually that is a situation where there are multiple reasons why some evidence is objectionable, but there are one or more of the reasons could allow for admission.  As an example from the recent federalevidence.com posting,

What steps should a party take to ensure there is an appropriate record to preserve evidence error for appellate review? When is an objection sufficient to clarify the basis of the objection? The Seventh Circuit recently considered these issues in the context of whether challenged testimony was hearsay or offered to explain the defendant’s understanding. The issue was considered twice in an appeal, including an opinion that was amended, in in United States v. Leonard-Allen, __ F.3d __ (7th Cir. Aug. 29, 2013) (Nos. 12–3299, 12–3663)

False memories are a problem, especially in criminal trials.  False memories can be created intentionally or through poor interview techniques (which I consider sort-of-intentional), and unintentionally because that is how the human brain can work.  To quote Prof. Loftus:

We all have memories that are malleable and susceptible to being contaminated or supplemented in some way.

Prof. Elizabeth Loftus has been a leading investigator in the phenomena of false memory.

I have posted – perhaps ad nauseum – about objecting to context setting testimony of law enforcement witnesses: it allows the prosecution to smuggle in all kinds of hearsay and objectionable information, designed to affect the members.

The typical answer to this skunk thrown in the “jury box” is not to ask the members not to smell it, but to them not to smell it by way of a curative instruction.  I’ve also – again ad nauseum – commented that so-called curative instructions are not likely effective.

So,  the 6th has addressed the issue in United States v. Nelson.  Like the errors of context information there is, to quote federalevidence.com, an avoidable problem.

You will remember the National Academy of Sciences on report on forensic sciences that caused a – temporary – uproar.

The Texas Star-Telegram reports on 11 August 2013:

Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.

Client:  It wasn’t me.  I didn’t (send that raunchy email) (I didn’t download that porn).

Atty:  But look, they’ve got all this forensic data showing it came from your Army account while you were on line.

Client:  It wasn’t me.

The politicians made issue of several military sexual assault program personnel who got in trouble.  They crucified them.

Now here is another one who apparently is pretty much found to be a less serious case than postured.  Little will be heard from the policians about this.  But we on the defense side know that incidents like this do happen where a spouse is trying to leverage the process in a divorce/child custody proceeding.  There’s certainly research that shows a contentious divorce or child custody matter is ripe for false allegations of sexual assault.  Not that the politicians care.

A former Fort Campbell sexual assault prevention officer has been cleared of an aggravated stalking charge brought against him by his ex-wife in May — but he says his reputation and career have been ruined.