Articles Posted in Evidence

Federal evidence review brings us information about a proposed change to Fed. R. Evid. 803(10), which by operation of Mil. R. Evid. 1102, will become “law” for courts-martial absent Presidential action (18 months after the effective date of any FRE amendment). This is an occasional issue in fraud and some theft cases. [T]he draft amendment…

Here is a link to a useful site all about DNA. And here is a link to the NIJ forensics site.

The Supreme Court of Oregon has revisited its 30-year old rule that allowed for admission of eyewitness identification resulting from “unduly suggestive pretrial identification procedures.” State v. Lawson consolidates two cases on the same issue, and decides en banc to recognize significant changes in the understanding and science of eyewitness identification. The court discussed State…

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…

Here is an interesting case from the First, United States v. Cameron, decided 14 November 2012. The issue is confrontation and the admission of various internet provider records. I think this case helpful in litigating the paper that the prosecution seeks to use in CP cases. We thus presume that Cameron’s challenge is to the…

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. 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…

Here, from Prof. Berman TG at Sentencing Law & Policy is a reminder about evidence in CP cases. I think most of us already do this, and a number of prosecutors already think of this. A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here),…

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798). Article I, section 9 of the United States Constitution states in…

Occasionally there is a case involving bite mark evidence and testimony. This type of testimony is subject to challenge under Houser. Here I am talking about a case where the bite mark testimony goes to prove the identity of the accused. So, to that end the defense needs resources to challenge admissibility of the evidence…

Except in a slightly different context, but still a similar point. Errin Morris, Cognitive Biasl and Evaluation of Forensic Evidence, The Champion, NACDL, May 2012. Remember, USACIL and all the others get a full brief sheet on why the evidence should be tested and lots of facts. The subsequent testing is not done in the…