Articles Posted in Evidence

The proposed amendment to FRE 804(b)(3) will be transmitted to the Supreme Court for its review with a recommendation from the U.S. Judicial Conference that the Supreme Court approve and transmit the proposed amendment to Congress. Under Mil. R. Evid. 1102, if approved the change will become effective in courts-martials 18 months later (unless the…

Did Iraq veteran’s PTSD spark his shoplifitng charge? By Julia O’Malley | Anchorage Daily News. Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange? Can you explain that? For some years I have successfully argued from…

I’ve already noted that Briscoe is a very interesting follow-on to Melendez-Diaz about the use of forensic analysis reports at trial where the chemist is not called as a witness. See here, here, and here. Here is a link to the Brief just filed on behalf of the 07-11191 Briscoe v. Commonwealth of Virginia Brief…

Here is a commentary from Prof. Colin Miller on his blog I love to read about Wuterich. He begins: All but two states have some type of reporter’s privilege. Similarly, most federal courts have recognized some type of reporter’s privilege as well. But what about military courts? Well, to this point, they haven’t recognized a…

ACCA has issued a Memorandum Opinion in United States v. Markis, ARMY 20070580 (A. Ct. Crim. App. 18 August 2009). Appellant had given three pre-trial admissions to CID. The defense sought to exclude the confessions as being coerced. The military judge permitted the defense to present expert testimony on coerced confessions, specifically it appears how…

Here is an interesting case from FederalEvidence blog on how the 8th Circuit deals with the scratchy issue of a poor audio recording. Factors For Admitting “Partially Inaudible” Recordings Eighth Circuit rules that partially inaudible recordings with a confidential informant may be admitted when the trial court finds that they “provide [the] jury with the…

From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided for a reason within the…

Here is an interesting piece about Members having certain types of electronic evidence in the deliberation room. A few federal courts provide guidance on the use of electronic evidence during jury deliberations, including the Ninth Circuit Model Jury Instructions and the U.S. District Court for the District of New Hampshire. /tip Federal Evidence blog.

Tenth Circuit Joins Consensus On Admissibility Of Fingerprint Evidence In conspiracy to possess marijuana and illegal firearm possession prosecution, expert fingerprint testimony identifying the defendant’s thumb print on guns and ammunition was admissible under FRE 702 and Daubert even though the defendant raised “questions regarding whether fingerprint analysis can be considered truly scientific in an…

I routinely counsel clients not to talk with anyone regarding their case. Here is a new Navy case which is a reminder. There is no evidence to suggest the appellant was engaged in plea discussions or negotiations with LtCol C at the time he repeated the advice from his father-in-law. The record reflects the appellant…