Articles Posted in Evidence

Can Self-Authenticated, Certified Business Records Violate The Confrontation Clause? Federal Evidence Review, 30 July 2008. Pointing to United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. 2008), the reviewers posit that Fed. R. Evid. 902 (Mil. R. Evid.) leads to “testimony” in violation of Crawford v. Washington, 541 U.S. 36 (2004).

Here, courtesy of Federal Evidence Review, is the proposed change to Fed. R. Evid. 804(b)(3). Should this become the federal rule, it will become the military Rule 18 months later, absent affirmative action to the contrary. It’s my understanding that the public comment period has closed.

United States v. Fisher, ARMY 20080012 (A.Ct.Crim.App. 20 February 2009). This case was submitted on its merits. After a review, the court specified two issues, both of relevance to trial advocates and military judges. After finding error, the court found no relief warranted because the error was not prejudicial. We have addressed something similar in…

Prof. Peter Tillers, How Distinctive Must a Modus Operandi Be to Serve as a “Signature“? Tillers on Evidence and Inference, 13 February 2009. Military Rule of Evidence 404(b), United States v. Huddleston, 485 U.S. 681 (1988), are at the heart of Prof. Tillers’ critique. In his view the rules requiring more than just happenstance are…

Patrick Clayborn, Pre-court-martial hearing held for Fort Rucker soldier, 11 February 2009. So called shaken-baby cases can be difficult. The evidence of nexus between acts alleged and injury or death can be ambiguous and subject to interpretation, or in some cases overpowering. There are several cases worth reading in this area, Warner, in particular is…

Colin Miller, Into The Dawn To Montana: Montana Moves Closer To Adopting Sex Crime Character Evidence Rules, 9 February 2009. A reminder that rules of evidence are in many instances political responses, not reality.

Check out, Island Justice: Guam Supreme Court Opinion Reveals Important Hearsay & Confrontation Clause Principles, Professor Colin Miller, Evidence Prof Blog, 7 February 2009. They discuss an interesting case of an assault victim. It was six days before police could interview her, and she was interviewed a second time after that. The police office was…

Solomon Moore, Science Found Wanting in Nation’s Crime Labs, N.Y. Times, 4 February 2009. John Eligon, New Efforts Focus on Exonerating Prisoners in Cases Without DNA Evidence, N.Y. Times, 7 February 2009. Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes…

C.A.A.F. has DNA on its conference agenda. In a post-conviction access to DNA evidence case: The district court found that Bradley had a constitutionally protected interest in his life but that the due process protection of that interest was diminished by his conviction. United States v. King, No. 07-12073, 2009 U.S. App. LEXIS 2056 (11th…