The general rule is that you are stuck with the record on appeal and can’t supplement it with new or additional facts.
There are however some limited exceptions to the general rule for items of appellate judicial notice. Here is a short piece discussing some of the exceptions.
An example from military appeals:
The various breath test instruments used by the military and civilian police are subject to challenge, for a number of reasons.
Here’s a “report” about the Intoxilyzer 8000 courtesy of PS.
Prosecutors ask CID, NCIS, OSI, CGIS agents all the time why they didn’t believe the accused in the interrogation. The answer often is a variant of, “he was nervous.”
Yeah, right.
First they are told and usually escorted to the LE office. The escort won’t tell them why or what’s going on. They then have to wait the appropriate time in the waiting area to heighten the tension. I was reminded of this by a post from fourth amendment blog.
http://www.denverda.org/dna/DNA_Nonhuman.htm
Thanks to BW, who shall remain otherwise anonymous.
The Rule in Queen Caroline’s case is inconsistent with the present intent of Mil. R. Avid. 613(b). But the rule is still applied (IMHE) in courts-martials and in a split of federal circuits. We may be headed back in time.
Schaffzin on the Return of the Rule in Queen Caroline’s Case
Katharine Traylor Schaffzin (University of Memphis – Cecil C. Humphreys School of Law) has posted Sweet Caroline: The Backslide from Federal Rule of Evidence 613(b) to the Rule in Queen Caroline’s Case on SSRN. Here is the abstract:
Opinions, published and unpublished.
A nice discussion of judicial opinions in military cases can be found at
United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
We’ve seen some recent cases discussing the issue of over zealous argument by trial counsel on the merits. What to do, oh what to do.
How about object!
And,
NATIONAL CLEARINGHOUSE FOR SCIENCE, TECHNOLOGY & THE LAW
at
Stetson University College of Law
“SHARING KNOWLEDGE TO PROMOTE JUSTICE”
The relationship between law and science and technology has been called both an essential alliance and a reluctant embrace, Sheila Jasanoff, Science at the Bar: Law, Science and Technology in America (1996).
Federal Evidence Review alerts us that:
The Seventh Circuit is the first circuit to publish revised jury instructions based on the recent ruling Supreme Court ruling clarifying the burden to withdraw from a conspiracy in Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), which abrogated prior Seventh Circuit cases on the issue
On January 9, 2013, the Supreme Court issued a unanimous decision clarifying the burden of proof to establish withdrawal from a conspiracy. In a decision authored by Justice Antonin Scalia, the Court held that the defendant holds the burden to prove withdrawal and the government does not bear any burden to disprove withdrawal. See Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013). The ruling resolved a split on the issue among the circuits.
Remember that under Mil. R. Evid. 1102, any changes to the federal rules become effective in court-martial practice 18 months after federal enactment, unless the President directs changes. So, federalevidencereview brings us:
Public Comments Critical Of Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV)
Under what circumstances may prior consistent statements be considered? A proposed amendment under consideration would broaden the use of prior consistent statements. Public comment on the proposal ends today. While few comments have been received, the comments question the necessity of any amendment.
Court-Martial Trial Practice Blog
