Articles Posted in Evidence

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…

I have been routinely filing a motion in-limine in cases where I expect the prosecution witnesses, typically law enforcement or DFAS, to be providing context testimony. There are several bases to object: hearsay is bootstrapped, there is implied human lie detector testimony, there are Mil. R. Evid. 701 fact wrapped and disguised as to expert…

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…

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…

A constant frustration – how to impeach (and typically with the book is sitting there on counsel table). Complaining Witness: Blah, blah, blah. Defense counsel: Now Ms. Complaining Witness you received an Article 15 . . . . (“Objection,” – “Sustained.” [DC looks at judge with a ‘what did I just do’ attitude.]). NO, wrong.…

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)…

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of Evidence 410 provides in relevant part that Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other…

Thanks to Professor Colin Miller for this piece. In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are “testimonial” and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial,…

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.…

Thanks to Federal Evidence Review for a good summary of cases and issues involving 404(b) issues in federal courts.