Articles Posted in Evidence

The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page). The granted issue was: WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF…

What the witness sees and remembers is a function of many factors specific to that witness and the crime scene: the witnesses ability to see without glasses, the absence of any lighting at night. What complicates matters is the deliberate or unintentional police actions (and actions of others – see ‘memory conformity’ issues). The American…

Consistent with military law, the federal circuits generally follow the principle that evidentiary errors in a judge alone case are often nonprejudicial. The basic theory being that judges are presumed to know and apply the law, and will ignore impermissible evidence even where there has been no objection. The Seventh Circuit recently considered the different…

There should be a reassessment and there should be “amended” rules for how cell phones, tablets, and computers are searched. Accessibility to computers and cellphones created an extraordinary change in how we communicate, and in particular how we retain and store private information about those communications. Along with the nature of the communications, the ability…

Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection. Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments. This is a particular bugaboo of my when LE agents and trial counsel stray from the…

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014. Key Evidence Issues During 2013 1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence 2. Supreme…

It is unusual in military cases to have evidence of microscopic hair analysis. But, it’s worth keeping up on, just in case. Also, the point below is further substantiation of the National Academy of Sciences critique of forensic “science” evidence. A 2009 news release on the NSA report had this to say: A congressionally mandated…

Prof. Colin Miller asks, and then gives. The recent opinion of the United States District Court for the Southern District of Florida in Dingman v. Cart Shield USA, LLC, 2013 WL 3353835 (S.D.Fla. 2013), addresses three interesting questions under Federal Rule of Evidence 609: (1) are convictions resulting from nolo contendere pleas potentially admissible under…

If a witness fails to object? What if the witness has discussed all with the prosecutor? Anyway . . . Fourth Circuit concluded it did not need to determine the scope of the psychotherapist-patient privilege since the respondent had waived any privilege; circuit notes the obligation “to timely assert the psychotherapist—patient privilege,” United States v.…

Prof Colin TG Miller has this post. In Crane v. Kentucky, the Supreme Court found that: “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” As I…