Court-Martial Trial Practice Blog
Here is a link to Orin Kerr’s review of Fourth Amendment cases from the 2011 SCOTUS term.
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Worth the read-Scalia on reading
Justice Scalia’s new book, “Reading Law: The Interpretation of Legal Texts,” is available.
Here’s the puff piece from Amazon.
In this groundbreaking book by best-selling authors Justice Antonin Scalia and Bryan A. Garner, all the most important principles of constitutional, statutory, and contractual interpretation are systematically explained in an engaging and informative style-including several hundred illustrations from actual cases. Never before has legal interpretation been so fascinatingly explained. Both authors are individually renowned for their scintillating prose styles, and together they make even the seemingly dry subject of legal interpretation riveting. Though intended primarily for judges and the lawyers who appear before them to argue the meaning of texts, Reading Law is sound educational reading for anyone who seeks to understand how judges decide cases-or should decide cases. The book is a superb introduction to modern judicial decision-making. Justice Scalia, with 25 years of experience on the Supreme Court, is the foremost expositor of textualism in the world today. Bryan A. Garner, as editor in chief of Black’s Law Dictionary and author of Garner’s Dictionary of Legal Usage, is the most renowned expert on the language of the law. Reading Law is an essential guide to anyone who wishes to prevail in a legal argument-based on a constitution, a statute, or a contract. The book is calculated to promote valid interpretations: if you have lame arguments, you’ll deplore the book; if you have strong arguments, you’ll exalt it. But whatever your position, you’ll think about law more clearly than ever before.
Impeachment by . . .
To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that
A statement is not hearsay if:
1. The declarant testifies and is subject to cross-examination about a prior statement.
2. The declarant testified under oath at a prior “hearing” or “or proceeding.”
Is the Art of Advocacy all wrong
This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.
The authors say the book was written to document which aspects of trial advocacy lore are actually supported by the literature. They comment that:
Trial commentators are [typically] relying on ‘pop’ psychology and seldom using social and behavioral scientific research as the basis for their proposed strategies.
“Jury” matters
The July issue of The Jury Expert is now on-line. There are several items of interest to the trial practitioner.
I was always told:
Tell ‘em what you’re going to tell ‘em;
Tell ‘em;
Tell ‘em what you told ‘em;
Sit down.
Prior sexual assault allegations
In trial of defendant for sexually abusing two minors, the admissibility of evidence that victims had made false accusation of sexual abuse against others was admissible, not under FRE 403, FRE 412, or 608(b), but rather under the Sixth Amendment Right to Confrontation, in United States v. Frederick, 683 F.3d 913 (8th Cir. July 5, 2012) (No. 11-1546).
h/t federalevidence.com
We hold that the military judge improperly limited cross-examination of the prosecutrix by precluding defense questions concerning her diary, a prior false rape claim, and two prior false claims concerning her health. U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986); seeMil.R.Evid. 608(c), Manual for Courts-Martial, United States, 1984. We also hold these constitutional errors were not harmless beyond a reasonable doubt and require a rehearing. See generally Olden v. Kentucky, 488 U.S. 227, 233, 109 S. Ct. 480, 484, 102 L. Ed. 2d 513 (1988).
United States v. Bahr, 33 M.J. 228, (C.M.A. 1991).
Confinement and MRE 609(b)
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
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
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
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, 2012Abstract:
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.