Whether, and to what extent, the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary.

The petition begins with,

When a criminal defendant seeks potentially exculpatory information that is protected by the psychotherapist-patient privilege, a court must decide which prevails: the defendant’s interest in accessing that material, or the government’s policy interest embodied in the privilege. Both sides of the ledger are important: On the defendant’s side, his constitutional rights to due process, compulsory process, and confrontation may all be compromised if he is denied access to the information. On the government’s side, disclosing otherwise privileged information could compromise important public objectives, including “the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Jaffee v. Redmond, 518 U.S. 1, 11 (1996). Where the evidence is in the hands of the State and the privilege law at issue does not “absolute[ly] . . . shield [the] files from all eyes,” this Court has held that a criminal defendant’s constitutional right to due process trumps a privilege. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).

How many times have we seen the MCIO investigators have some access, but the trial counsel refuses to provide citing Mil. R. Evid. 513?

Let’s see if the Supremes grant. Follow the case here at SCOTUSblog.

United States v. Haymond, decided today (26 June 2019) by the Supremes. The opinion is written by Gorsuch. (I’ve linked to SCOTUSBlog so you can the briefs and the opinion.

Some early comment from Prof. Doug Berman — here.

Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can’t Remember Making Them?

He first notes that misidentification contributed to 75% of exoneration cases. Then he moves to Mil. R. Evid. 801 and how an out of court identification may not he hearsay.

Now, of course, this rule make sense…broadly speaking. Imagine a classic case in which an eyewitness picks the defendant out of a lineup hours/days/weeks after a crime and then is unable to identify the defendant at trial months/years later. In such a scenario, it would seem to make sense to allow for the prior identification. But what about when the witness doesn’t even remember making the identification?

he discusses a Louisiana case and concludes the rule was correctly applied. But he has qualms.

I have questions about the reliability of the eyewitness in category (1), but that witness made a pre-trial identification and remembers making it. I can see introducing their identification and allowing the jurors to decide whether it is credible. But, as for the witness in category (2),…I’m left with serious questions about their reliability. I think those questions might be enough to exclude their identification altogether. Barring that, pre-trial identifications are still subject to the Rule 403 balancing test, and I think any probative value of a pre-trial identification by an eyewitness who doesn’t even remember making it is substantially outweighed by many dangers.

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

Army CID made a number of amateurish mistakes in identifying the accused in a military sexual assault case and then failing to secure or gather supporting evidence that may have helped the prosecution. (One of the problems in MCIO investigations these days is that they are conducted as “victim-centric” “investigations,” not as criminal investigations. That means a contrived or command directed confirmation bias which misses or loses evidence for the defense and the prosecution.) This investigation is another example of why neither trial nor defense should take CID (or other LE) investigations at, dare I say it, face value.

The military judge found that SPC Al-S showed the CID agent appellant’s photograph from SPC Al-S’s phone.14 The CID agent then showed the single photograph to SPC AM who immediately identified appellant as the person who assaulted her at the dance party. Prior to showing SPC AM the photograph, the CID agent did not arrange a photo array or present SPC AM any other options but to say that the photograph was or was not the person who assaulted her. This court also notes that the government did not present evidence or any exigent circumstances to explain the CID agent’s decision that it was necessary to show SPC AM the single photograph. The military judge concluded that the identification method used by the CID agent was unnecessarily suggestive. This issue is unchallenged on appeal and we agree with the military judge’s conclusion that the pretrial identification was unnecessarily suggestive.

A footnote tells us that

Even without the CID agent showing SPC AM appellant’s Facebook profile picture before trial, SPC AM would have seen the photograph absent any error in law enforcement procedures. While SPC AM was waiting to be interviewed by CID, her father sent her the picture of appellant to her phone. She opened up the picture but “didn’t even take a glance at it” since she was waiting for the interview. However, after CID showed her the picture of appellant from Al-Shamesi’s phone, she looked at the picture her father sent and confirmed that they were the same photographs.

(Further potential contamination.) As I read the opinion, CID did nothing to copy and or preserve any of the photographs or images used by the complaining witness for her out-of-court identification which was a foundation for the in-court identification. By that failure, the CID set up the opportunity for the defense to impeach her with other photographs of the night in question and which CID had apparently failed to look for.

So, on appeal, the issue is whether the military judge made a mistake in letting the complaining witness identify appellant after having been exposed to an unnecessarily suggestive pretrial identification procedure.

Here are some initial resources to get the defense counsel started in challenging identifications.

NIJ, OJP, USDOJ, Eyewitness Evidence: A Guide for Law Enforcement (and DC seeking to XE on a bad ID). https://www.ncjrs.gov/pdffiles1/nij/178240.pdf

You might also take a look at the following for a starting point when ID is an issue. Wise, Richard A. and Safer, Martin A., “A Method for Analyzing the Accuracy of Eyewitness Testimony in Criminal Cases” (2012). Court Review: The Journal of the American Judges Association. 387. http://digitalcommons.unl.edu/ajacourtreview/387

Here’s the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer’s testimony. The federal constitution, as interpreted by Brady v. Maryland and its progeny, requires prosecutors to disclose to defendants any favorable, material evidence known to the prosecution team, including evidence relating to a witness’s credibility. Much impeachment evidence can be found in a police officer’s personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.

Here’s what I ask for in my discovery requests.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes, but is not limited to: Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked, and investigations regardless of result into allegations of malpractice. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue, in military cases. In fact some years ago I had a case where the NCIS gave a Henthorn disclosure to the prosecutor which turned out to be substantially and materially false.

Do you have foreign national witnesses or foreign language documents as evidence in your case?

United States v. Aifang Ye, No. 12-10576 (9th Cir. 2015)

may be of interest to you.

The court held that the defendant’s argument that the government’s failure to call certain translators as witnesses at trial violated her rights under the Confrontation Clause is foreclosed by precedent.

Sayeth a headnote. Factually it appears:

Prior to trial, Ye and Zhenyan objected that it would violate the Confrontation Clause of the Sixth Amendment to admit statements they had made to DHS unless the USCIS Language Line translators who assisted them were called to testify. After considering testimony and other evidence regarding the nature of USCIS’s translation services, the district court overruled the objection. Ye argues on appeal that the district court erred by subsequently admitting the translated statements at trial. In United States v. Nazemian, 948 F.2d 522, 525–28 (9th Cir. 1991), we held that, as long as a translator acts only as a language conduit, the use of the translator does not implicate the Confrontation Clause. Ye argues that Nazemian is inconsistent with the Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004), [and its progeny]. As Ye correctly concedes, however, we already have held that Nazemian remains binding circuit precedent because it is not clearly irreconcilable with Crawford and its progeny. Ye alternatively argues that the district court misapplied Nazemian in admitting the translated statements here.

The “Nazemian [test] requires analyzing four factors:

“(1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter’s qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.”

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing. That audio could then be transcribed into a verbatim transcript. The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

This was a reason I always wondered why the Air Force and Coast Guard didn’t record the 32. Although the cynical thought was that it prevented the defense from having a record to use for impeachment.

But here is the question for the current Article 32 pretrial hearing. Can the hearing be properly used as a substitute for a deposition, and testimony used in evidence should a witness become unavailable for trial. I think the answer should be NO. Largely I think this is because of the intent to avoid discovery and an appropriate amount of cross-examination of witnesses who did attend. There is now almost no discovery and the ability to cross-examine witnesses who do appear is more limited. Thus there is a strong constitutional argument that trying to use a transcript of Article 32 testimony violates the Sixth Amendment Confrontation Clause.

While the likelihood of needing prior testimony may not be a frequent event, there may come another day where this collateral impact of changing the Article 32 may come back to haunt. On balance the intent to adversely affect the ability of the defense to prepare for and defend against a charge has been accomplished-but at a cost to a potential prosecution.