Articles Tagged with Evidence

“Now what I want is, Facts.. . . Stick to Facts Sir!” (Charles Dickens, Hard Times, p. 1, Oxford World’s Classics, 1998.)

Evidence may be admissible under Mil. R. Evid. 803(8) as an exception to the hearsay rule.  Prof. Colin Miller reminds us that the exception is intended to cover recorded facts, not opinions. 

Here’s a reminder about authenticating emails based on a posting from Prof. Colin Miller at EvidenceProfBlog.  To paraphrase Prof. Miller:

And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

Is how one of my favorite evidence blog prof’s describes a First Circuit case.  I have previously commented on the issue in relation to MJ McDonald’s Army Lawyer article.

Federal Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010).  (Thanks to an early posting of the decision by CAAFLog.)

Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness.  Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining to confessions introduced against an accused.  See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002), the rule applies to oral as well as written statements.  United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002).  This is a different rule than Mil. R. Evid. 106.

In deciding the military judge erred in his application of Mil. R. Evid. 304(h)(2), NMCCA identified six non-exclusive factors to consider on the issue.

Federal Evidence Review has a good reminder that what may appear to be statements admissible as excited utterances may not in fact be so.  Thus, defense as always your job is to ensure that the prosecution doesn’t get away with ritualistic or talismanic incantations of, “it’s an excited utterance (or some other exception)".”

United States v. Erickson, ___ F.3d ___ (8th Cir. July 12, 2010).

Federal Evidence Review notes the following:

In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)

It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.

Professor Colin Miller has posted an excellent piece about the current status of expert testimony about the inaccuracies of eyewitness identification.

I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.

I’m traveling to the USDB (and get to come home), so here are some hits.

I follow fourthamendment.com blog every day.  Here is part of his reference to Huntzinger, and CAAF’s pending oral argument.

Don’t expect a decision in a while. I’ve always been intrigued by the quality of opinions from the CAAF, so I’m looking forward to it.

Here is a case from federalevidence.com:

Supervisor expert testified about his role in the peer review process; passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause; circuit also distinguishes Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), in United States v. Turner," _ F.3d _ (7th Cir. Jan. 12, 2010) (No. 08-3109)

A recent Seventh Circuit case revisits the issue of expert testimony which refers to the analysis of another expert. Is the Confrontation Clause violated when a supervisor testifies about the peer review process, his role in confirming reviewing the test results, and the initial results of another chemist? On the fact of the case, the circuit concluded there was no constitutional violation.

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