Articles Posted in Evidence

On 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial. Changes to the rules of evidence are included. It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati. Basically, a military judge grants suppression when…

Yes, is my answer, or at least that is my answer in a brief filed with the Army Court of Criminal Appeals and in several arguments at court-martial. Under Mil. R. Evid. 801(2), you can offer the out of court statements of an opposing party or certain statements of that parties lawyer as evidence. Such…

Yes, is my answer. In several cases at trial I have objected to prosecution evidence under Mil. R. Evid. 412, for the prosecution’s failure to follow the rule. Mil. R. Evid. 412 is clear that it applies to prosecutors. First the rule states: A party intending to offer evidence under sub-section (b) must— RCM 103(16)…

Captain John S. Reid, as this “Is It Hearsay? A Practical Primer,” in 43 The Reporter, No. 2 (2016), for a quick and good review of the various hearsay rules.

The Army legal websites are back en clair, having been unavailable to the public for about five to six weeks. Of course, they came back up just as the AFCCA and CAAF were going dark. Anyway. United States v. Commisso, No. 20140205 (A. Ct. Crim. App. 29 April 2016), has an interesting discussion and resolution…

In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice. This would seem to be a perfect opportunity to take up, again,…

We all laugh at TV shows and movies which we think of as fantasy. The CSI shows, NCIS, JAG, among . We ..get a laugh out of them. But reality may make you cry. Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice. Boston Review, November 16, 2015. This past April, the FBI…

“[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.” In discussing United States v. Henning, No. 20150410 (A.…

Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault. This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against…

(W)e seem to be on an endless quest to unmask the deceiver. This is easier said than done. The research is surprising. Even the professionals aren’t very good at catching people in a lie. When we do catch a lie, it’s often not for the reasons you may expect. There is no “Pinocchio’s nose”. That…