Articles Posted in Evidence

We do a lot of military sexual assault cases with alcohol involved. It is not unusual for a complaining witness to claim they were drunk, blacked out and didn’t consent. First, if blacked out they can’t know they didn’t consent–it’s impossible if they were blacked out, rather than them exhibiting a convenient and selective memory.…

Several relevant items for you this weekend. Orin Kerr has this post at The Volokh Conspiracy. In part: Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity…

The NMCCA has issued an interesting published opinion on a government appeal. United States v. Rios. From the opinion. The appellee is currently facing trial by special court-martial on numerous charges regarding larceny from the Marine Corps Exchange (MCX) on Camp Pendleton, California. He is alleged to have conspired with his wife to commit larceny[.]…

Worth-the-read is A PRELIMINARY DRAFT OF Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence, is the source for the ABA article I just posted about ancient documents. There is another proposal in the Draft relevant to technology. The drafters are suggesting changing FRE 902, which as we know…

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule. The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National…

There are some interesting articles for military justice practitioners in the Summer 2015, MLR. Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault  3. By Major Robert E. Murdough.pdf Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513 4. By…

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance. The recent case of Nappi v. Yelich, from the Tenth highlights that. The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.”…

Are you at a base overseas? Do you have foreign national witnesses or foreign language documents as evidence in your case? United States v. Aifang Ye, No. 12-10576 (9th Cir. 2015) may be of interest to you. The court held that the defendant’s argument that the government’s failure to call certain translators as witnesses at…

As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered. MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011). But, BUT,…

The Washington Post has a report today: The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000. Of 28 examiners with the FBI Laboratory’s…