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.

We hear a lot about the sufficiency of OSI, NCIS, CID investigations these days because of the sexual assault cases.  Generally the assumption is that the failure to investigate aids the accused.

I disagree that it always aids the accused.  There are many times the failure is in discovering helpful evidence.  Recently (thank you) had an IO point that out.

So, here is a NY civilian IAC case that highlights.  Sadly, it is an IAC case.  But where were the police and where were the prosecutors.

Add in that military personnel are trained to obey.

George Vallas

Independent

I found this interesting item on SCOTUSBlog.

If one goes to the “Frequently Asked Questions” page of the Supreme Court website, there is this question: “Where can I find the papers of the Justices?” Indeed. And here is the answer tendered: “The Biographical Directory of Federal Judges, maintained by the Federal Judicial Center, provides location information for the Justices’ papers. Search by the name of the Justice and then click on the link to ‘Research Collections’ to see where the papers are available. Many collections of papers are located at the Library of Congress and at academic and research institutions throughout the country. Depending upon the institution, some material may be available online.”

http://www.scotusblog.com/2013/08/accessing-the-papers-of-supreme-court-justices-online-other-resources/