Court-Martial Trial Practice Blog

Notice and demand rule change

December 4, 2012 | The Law Office of Philip D. Cave

Federal evidence review brings us information about a proposed change to Fed. R. Evid. 803(10), which by operation of Mil. R. Evid. 1102, will become “law” for courts-martial absent Presidential action (18 months after the effective date of any FRE amendment). This is an occasional issue in fraud and some theft cases.

[T]he draft amendment “would permit a prosecutor who intends to offer a certification to provide written notice of that intent at least 14 days before trial. If the defendant does not object in writing within 7 days of receiving the notice, the prosecutor would be permitted to introduce a certification that a diligent search failed to disclose" a public record or statement. Under this approach, the government would not have to produce a witness to testify about the absence of the record. The proposed amendment conforms with the "notice and demand" approach approved by the Supreme Court’s in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which called into question under the Confrontation Clause the admission of certificates to prove the absence of a public record to be used at a criminal trial.

Forensics

December 1, 2012 | The Law Office of Philip D. Cave

Here is a link to a useful site all about DNA.

And here is a link to the NIJ forensics site.

Constitutional history and such worth the read

December 1, 2012 | The Law Office of Philip D. Cave

For those interested in the history of the Constitution and its judicial interpretation, the George Washington Law Review has a:

COMMEMORATING THE 100TH ANNIVERSARY OF FARRAND’S RECORDS OF THE FEDERAL CONVENTION

edition. Volume 80, No. 5, includes:

The Ayes have it

November 30, 2012 | The Law Office of Philip D. Cave

The Supreme Court of Oregon has revisited its 30-year old rule that allowed for admission of eyewitness identification resulting from “unduly suggestive pretrial identification procedures.”

State v. Lawson consolidates two cases on the same issue, and decides en banc to recognize significant changes in the understanding and science of eyewitness identification.

The court discussed State v. Classen and its two-step five (nonexclusive) factors to consider whether an identification was “independent of suggestive procedures.” Classen had relied on Manson v. Brathwaite, 432 U.S. 98 (1977), wherein the Supremes “determined that reliability was the linchpin in determinations regarding the admissibility of identification testimony.”

Humor of the day

November 30, 2012 | The Law Office of Philip D. Cave

False confessions

November 28, 2012 | The Law Office of Philip D. Cave

The November/December issue of The Jury Expert is out and online. There are three items which deal with false confessions.

The first has the intriguing title of

“Only the Guilty Would Confess to Crimes” : Understanding the Mystery of False Confessions

Teufelshunde

November 28, 2012 | The Law Office of Philip D. Cave

Here is a piece from Stars & Stripes about a Marine accused of sexual behavior with dogs as well as having child pornography.

Secession and security clearances

November 23, 2012 | The Law Office of Philip D. Cave

Here is Bill Henderson on secession “petitions” and security clearances.

DSS personnel have recently received questions from security personnel at cleared contractors about whether contractors should file adverse information reports pursuant to NISPOM paragraph 1-302 regarding cleared persons who sign petitions to allow a state to withdraw or secede from the United States.

It also appears that erroneous statements have been made to the effect that DSS is directing contractors to treat the signing of such petitions as reportable adverse information.

Now what another innocent life taken

November 22, 2012 | The Law Office of Philip D. Cave

AP reports the following.

Johnathan Montgomery spent the past four years in a Virginia state prison saying the same thing a lot of inmates do: He was innocent. Convicted in 2008 of molesting a 10-year-old girl outside her grandmother’s Hampton home when he was 14, he insisted the alleged 2000 assault never happened. Turns out, he was telling the truth.

Coast is being identified because authorities say she admitted fabricating the story and because she has been charged with perjury. According to media reports, prosecutors say that Coast told investigators that her parents caught her looking at pornographic websites in 2007 when she was 17, so she concocted a story of prior sexual abuse to explain her behavior. When the alleged assault occurred, Montgomery lived across the street from Coast’s grandmother in Hampton, Va. The two had previously played together.

Worth the read-off topic

November 18, 2012 | The Law Office of Philip D. Cave

David Frum has this post in todays The Daily Beast.

“The hard decisions are not not the ones you make in the heat of battle. Far harder to make are those involved in speaking your mind about some hare-brained scheme, which proposes to commit troops to action under conditions where failure is almost certain, and the only results will be the needless sacrifice of precious lives.” -Matthew B. Ridgeway, Memoirs (1956).

At the same time Salon reports on his book, “The Outpost: An Untold Story of American Valor.” The header of the piece is: