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.
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).
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).
Slate has a piece,
The Catch-22 of Eyewitness ID, Juries trust the memory of witnesses even when they shouldn’t.
h/t How Appealing.
SCOTUSBlog has this of potential interest.
The petition of the day is:
Loyola Law School Los Angeles
December 11, 2012
Loyola of Los Angeles Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2012-49
Abstract:
The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors. This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.
Number of Pages in PDF File: 45
The C. G. Ct. Crim. Apps. has issued an unpublished decision in United States v. Whitaker, in which it discusses whether:
Appellant’s conviction under Article 125, UCMJ, for consensual sodomy should be dismissed because the military judge failed to discuss the corresponding liberty interest during the providence inquiry.
The court concluded it was proper to dismiss the charge.
I’ve posted already about the Oregon case – Oregon v. Lawson.
Here is a piece from the excellent Concurring Opinions blog about eyewitness testimony.
I would like to underscore Brandon’s point about reform efforts that are currently underway. While for the most part, the criminal justice process is stuck in a bad place (thanks to a large degree to the US Supreme Court), it is refreshing to note that a few local and state jurisdictions are moving ahead with thoughtful reforms.
From time to time I find a need to ask for a special instruction or a rewording of a BB instruction. Here is a favorite, in BAH/TAD/TDY fraud cases:
I have asked for (but not gotten) a “Consciousness of Innocence,” instruction in cases where there is evidence to support it (cooperating with NCIS, giving a full statement, consenting to searches, other assistance. A one point I was also of the opinion that a willingness to take a polygraph examination was also indicative.). I craft it based on the prosecution friendly consciousness of guilt instruction. There appears to be acceptance in some courts of this instruction.
Federal Evidence Review continues the practice of checking it twice for federal jury instructions among the circuits. Personally I have found the Eleventh’s instruction for child por******phy cases to be an excellent resource.
Prof. Berman notes a unique “stale” murder/rape case in Illinois.
Speaking of the Supreme Court, two recent rulings by the Justices, Gall and Pepper, made much of considering under federal sentencing law the positive post-offense behavior by a defendant. In this case, it seems the defendant was a model citizen for more than five decades, during which time he apparently served our country in the armed services and served his local community as a police officer.
To some extent military courts already factor positive post-offense service as a sentencing consideration – it can be mitigating and show rehabilitative potential under R.C.M. 1001.
Court-Martial Trial Practice Blog
