Court-Martial Trial Practice Blog

Confinement and MRE 609(b)

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

Impeachment with conviction.

Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial. But if there were to be a prior conviction there may be some interpretation necessary. So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we go.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Eleventh Circuit sidestepped the most interesting issue in the case.

It was him, some more

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

As of July 1, the Virginia Department of Criminal Justice Services has promulgated new model policies regarding eyewitness identification, including photo line-ups, following a study that was done showing how many mistaken IDs there are. By statute, all police departments are required to have a policy regarding both live and photo line-ups 19.2-390.02, though the DCJS study found that several departments did not.

here’s the link to the new policies:
http://www.dcjs.virginia.gov/cple/sampleDirectives/manual/2-39.docx
and the study, along with a couple of articles:
http://www.dcjs.virginia.gov/research/documents/12LawEnforceLineup.pdf
http://norfolkvabeach.com/police-photo-lineups-fail-new-state-policy.html
http://hamptonroads.com/2012/07/police-photo-lineups-fail-new-state-policy

h/t Valerie L’Herrou
Assistant Public Defender
Charlottesville Office of the Public Defender

National Institute of Justice worth reading

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

To Err is Human: Using Science to Reduce Mistaken Eyewitness Identifications Through Police Lineups
by Maureen McGough

Solving Sexual Assaults: Finding Answers Through Research
by Nancy Ritter

Worth the read

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

The Importance of James Otis

Thomas K. Clancy

West Virginia University College of Law; University of Mississippi School of Law
July 17, 2012
Mississippi Law Journal, Vol. 82, 2012

Abstract:
Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment and no historical event is more important that James Otis’ argument in the Writs of Assistance Case in 1761. The Writs case and the competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment. More fundamentally, Otis’ importance then and now stems not from the particulars of his argument; instead, he played and should continue to play an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars. This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.

not exceptional hearsay

July 27, 2012 | The Law Office of Philip D. Cave

Military (Federal) Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

While the rule appears to allow a broad exception for hearsay, the Supreme Court of VA points out the narrowing language still has effect.*

Manual for Courts-Martial 2012

July 21, 2012 | The Law Office of Philip D. Cave

Get your 2012 MCM here:

je vous avoue

July 21, 2012 | The Law Office of Philip D. Cave

Acute Suggestibility in Police Interrogation: Self-Regulation Failure as a Primary Mechanism of Vulnerability, Deborah Davis, University of Nevada, Reno, Richard A. Leo, University of San Francisco – School of Law, 2012

Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012)
Univ. of San Francisco Law Research Paper

Abstract:
This chapter examines the failure of police, attorneys, judges, and juries to appreciate the magnitude of acute impairments of will and cognition in interrogation. The authors explore sources of enhanced susceptibility to interrogative influence triggered by the nature of the suspect’s immediate circumstances, rather than by chronic personal characteristics, which they call “acute interrogative suggestibility.” The authors consider the role of “interrogation-related regulatory decline” or IRRD in producing acute interrogative suggestibility — that is, the decline in self-regulation resources necessary to control thinking and behavior in service of resisting interrogative influence. In particular, the authors concentrate on three common but underappreciated sources of IRRD in police interrogation, one or more of which are present in most cases involving claims of involuntary or false confession: acute emotional distress, fatigue and sleep deprivation, and glucose depletion. The chapter concludes by arguing that much more weight should be given to issues of acute sources of vulnerability to influence and suggestion than is presently the case.

It was him, I’m sure

July 20, 2012 | The Law Office of Philip D. Cave

Maybe not. There is quite a bit of research and anecdotal evidence to show that eyewitness testimony can be unreliable. Now New Jersey is in the frontline of making sure a jury is aware of the potential problems with eyewitness testimony. To quote the ABA Journal.

New jury instructions in New Jersey will warn that human memory is not foolproof and eyewitness testimony must be carefully scrutinized.

Set to take effect on Sept. 4, the new instructions follow a landmark ruling last year by the New Jersey Supreme Court that makes it easier for defendants to challenge the reliability of eyewitness identifications, the New York Times reports. The decision also required juries to be instructed on the variables that could lead to mistaken identifications.

Depositions

July 20, 2012 | The Law Office of Philip D. Cave

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

b‘ware

July 20, 2012 | The Law Office of Philip D. Cave

The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

Court-Martial Trial Practice

Acute Suggestibility in Police Interrogation: Self-Regulation Failure as a Primary Mechanism of Vulnerability, Deborah Davis, University of Nevada, Reno, Richard A. Leo, University of San Francisco – School of Law, 2012

Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012) Univ. of San Francisco Law Research Paper

Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012)
Univ. of San Francisco Law Research Paper