Court-Martial Trial Practice Blog

Amendments to Sec. 8, MRE

February 5, 2013 | The Law Office of Philip D. Cave

The public comment period on a pending amendment to the business record and public record hearsay exceptions under FRE 803(6), (7), (8) expires next week on February 15, 2013. To date, there appears to be no opposition or controversy to the amendment as no public comments have been submitted.

The pending amendment concerns the trustworthiness requirement for the business and public records hearsay exceptions under FRE 803(6), (7), (8). Specifically, the amendment would clarify who holds the burden of proof to show lack of trustworthiness. The proposed amendment would modify this requirement for each rule as follows (noting ~~strike out~~ for deletions and underline for insertions):

The business or public record is admissible where the foundational requirements are met and "~~neither~~ the opponent does not show that thesource of information ~~nor~~ or the method or circumstances of preparation indicate a lack of trustworthiness."

Keep in mind that an adopted change goes into effect 18 months after adoption, absent Presidential action to the contrary.

404(b)-403-Oh, never mind-it comes in

February 4, 2013 | The Law Office of Philip D. Cave

Michael H. Graham (University of Miami – School of Law) has posted two articles on "other crimes" evidence under Federal Rule of Evidence 404(b) on SSRN. The first is Other Crimes, Wrongs, or Culpable Acts, Fed.R.Evid. 404(B): ‘Defining’ a New Paradigm (Criminal Law Bulletin, Vol. 47, p. 998, 2011). Here is the abstract:

Commentators addressing the incredible theoretical and functional difficulties surrounding the long accepted general principal that while other crimes, wrongs, or culpable acts are not admissible to prove the character of a person in order to show action in conformity therewith, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), have more or less thrown in the towel reverting to the bromide that fundamentally it all is a question of proper application of discretionary balancing, basically some version or another of Fed.R.Evid. 403. Such an approach is recommended by those adopting a totally theoretical approach to the enterprise as well not surprisingly also by the two commentators, Imwinkelried and Leonard, who have authored treatises devoted solely to the subject.

The second is Reconciling Inextricably Intertwined/Intricately Related Other Crimes, Wrongs, or Culpable Acts Evidence with Fed.R.Evid. 404(B): Don’t Throw the Baby Out With the Bath Water (Criminal Law Bulletin, Vol. 47, p. 1258, 2011). Here is the abstract:

Not a surprise

February 4, 2013 | The Law Office of Philip D. Cave

I was not surprised about the thoughts expressed in this survey. What did surprise me was the apparent extent of the feeling.

http://www.washingtonpost.com/national/survey-male-marines-fear-false-sexual-assault-accusations-with-women-in-combat/2013/02/01/d906ee80-6cce-11e2-8f4f-2abd96162ba8_story.html

The Perils of Eyewitness Testimony

January 25, 2013 | The Law Office of Philip D. Cave

Eyewitness Memory for People and Events (Chapter 25)

Gary L. Wells

Iowa State University, Department of Psychology

Elizabeth F. Loftus

University of California, Irvine – Department of Psychology and Social Behavior
January 16, 2013
Handbook of Psychology, Vol. 11, 2013, Forensic Psychology, Chapter 25, R.K. Otto and & I.B. Weiner (Eds), Hoboken, NJ: John Wiley & Sons, Inc.
UC Irvine School of Law Research Paper No. 2013-88

Abstract:
This chapter begins with a summary of the case of Thomas Brewster, who was tried for murder based in large part on eyewitness testimony. Ultimately DNA came to Brewster’s rescue, and he was freed before the trial ended. Analyses of taped interviews in the case help reveal how the interviewing process itself may have tainted the eyewitness testimony. The chapter continues with discussions of new psychological research on memory for complex events. This work shows how the details of events can be changed when witnesses are exposed to post-event information that is misleading. And with enough suggestion, entire events can be planted into the mind of ordinary healthy adults. The final section discusses new findings concerning eyewitness memory for people. This includes eyewitness identification of previously seen strangers, and new findings on procedures that can reduce mistaken identifications.

Notice under MRE 404(b)

January 15, 2013 | The Law Office of Philip D. Cave

In United States v. Lindsey, __ F.3d __ (8th Cir. Jan. 9, 2013) (Nos. 11–3485, 11–3513), the court found that notice of intent to use some 404(b) evidence was timely and reasonable. The notice was given twice, a year before trial and again earlier than 30 days from trial.

In assessing the reasonableness of the notice the court “considered a three-factor test, whicn required that:

Warning and reminder

January 14, 2013 | The Law Office of Philip D. Cave

Here is an interesting published decision from ACCA in United States v. Pleasant.

The case has a warning, and a reminder of what we often tell clients about testifying. In this case the issue being whether or not the testimony is helpful or hurts, and as ACCA considers:

When an accused testifies on his own behalf, he does so at his own peril, risking that he might fill in gaps or provide affirmative evidence contributing to or resulting in his conviction.

Evidence issues for 2013

January 10, 2013 | The Law Office of Philip D. Cave

Federal Evidence Review has this list of issues they see as important in the coming year.

Note item 2 was decided by the Supremes 9 January, with a ruling that the accused bears the burden to establish withdrawal from conspiracy.

But your honor!

January 10, 2013 | The Law Office of Philip D. Cave

I read Federal Evidence Review daily. It’s an excellent resource on the federal rules of evidence. Here is their “top ten” list for 2012. Obviously not all the points are relevant to MJ practitioners.

You must have the right witness

January 10, 2013 | The Law Office of Philip D. Cave

Similar to its federal counterpart, Minnesota Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

After he was convicted, the appellant appealed, claiming, inter alia, that the State failed to lay a proper foundation for admission of the transaction journal as a business record under Minnesota Rule of Evidence 803(6).

CP and 414

January 10, 2013 | The Law Office of Philip D. Cave

As noted in yesterday’s post, Federal Rule of Evidence 414(a),

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let’s take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).