Articles Tagged with mil. r. evid.

Here is an interesting case from the Tenth, about cross-examination of a witness about a prior judicial “finding” that the witness was not credible — United States v. Woodard.

The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.”  U.S. Const. amend. VI.  One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination.  Davis v. Alaska, 415 U.S. 308, 315 (1974).  This is the“principal means by which the believability of a witness and the truth of his testimony are tested.”  Id. at 316.  A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.”  United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted).  Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’”  Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

As Prof. Colin Miller TG points out in a new post, Fed. R. Evid. 804(b)(6), applies to both sides.  The Mil. R. Evid. contains the same language.

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For an example of a case in which the government forfeited its right to object to the defendant’s admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).

Prof. Miller concludes:

Well, I use Wikipedia for research.  But, I use it “in some limited situations . . . for getting a sense of a term’s common usage."  Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011),   Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads”  The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").). 

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

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.

“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. 

In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench.  (I have noted over the years that it takes most judges about a year to get their relative bearing.)   I think we can all echo his comments and find a myriad of examples from our own and other cases.  What I wanted to comment on though was something in the section about keeping track.  If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

Prof. Colin Miller posts:

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that

Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.

Every so often the comes up of impeachment by prior conviction under Mil. R. Evid. 609.  The reminder is that:

The fact of a pending appeal does not defeat admission, but it may be brought up and discussed.  Mil. R. Evid. 609(e).

A summary court-martial may not be used to impeach under this rule.  There may be other ways to impeach with conduct subject to discipline at a summary court-martial, but not Mil. R. Evid. 609.  (Further evidence that an SCM is not considered a “conviction?”)

Prof. Collin Miller has this item on his blog which is an excellent reminder about objections – an issue for the defense much more than prosecution.

You’ve seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, "Objection, your Honor," and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, "Objection," in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.

Mil. R. Evid. 103(a)(1) requires that when making a motion counsel at court-martial, “[state] the specific ground of objection, if the specific ground was not apparent from the context[.]”

With a seasonal title, Prof. Colin Miller reminds us of a particular caution when seeking to admit statements of a co-conspirator – the statements have to be made before the crime is committed.  There should be the same impact in a court-martial prosecution under the UCMJ.

Prof. Colin Miller, Later On, We’ll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions.

As the text of this Rule [Indiana/Fed./Mil. R. Evid. 801(d)(2)(E)] makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated.