According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.

We know that some women are like men, they cheat on their spouse.

Yet investigators often ignore these knowns–in following orders to believe the “victim” and through confirmation bias.

Yet some persistent in denying this happens and presume guilt and follow confirmation bias to the desired conclusion.

Occasionally, the truth comes out. Thus this release from the federal prosecutors in Virginia.

A Chesapeake woman pleaded guilty today to lying to Naval Criminal Investigative Service (NCIS) investigators about an alleged sexual assault that occurred aboard Naval Station Norfolk. According to court documents, in July 2018 Miranda H. Overton, 21, made a report to NCIS alleging that an active duty Navy sailor sexually assaulted her. After opening an investigation into the alleged assault, the alleged perpetrator was interviewed, and he explained that he had consensual sex with Overton after they met on an online dating application. Investigators then obtained surveillance video from the day of the alleged assault revealing that Overton and the sailor kissed in the elevator immediately prior to the alleged assault. Furthermore, investigators obtained Overton’s statement during her sexual assault forensic examination where she admitted that prior to meeting with alleged perpetrator they agreed to have sexual intercourse. Investigators subsequently interviewed Overton a second time during which she admitted her allegation was false and had made another false allegation in the past. Overton admitted that she fabricated the allegation out of fear that her significant other would end their relationship if the significant other became aware that Overton had sex with the sailor. (Emphasis added.)

The statement of facts submitted to the court is available on PACER and contains additional facts of importance.

Woman-pleads-guilty-false-statement-regarding-sexual-assault[.]

• Get the SANE exam. There is quite a bit of possible information in the report valuable for defense.
• Get the CCTV or other video. You may be lucky.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

WASHINGTON / May 23, 2019 – Over 100 law professors, practicing attorneys, scholars, and concerned citizens have endorsed a petition calling on the Department of Justice to promptly cease its support for guilt-presuming investigations. Commonly known as “victim-centered,” such methods vitiate notions of fairness and investigative impartiality and contribute to the problem of wrongful convictions.

“Victim-centered” methods such as Start By Believing advise investigators to start with a presumption of guilt, seek to “corroborate the victim’s account,” and write their reports using the “language of non-consensual sex.” (1) Such approaches violate ethical codes that require investigators to “present such evidence impartially and without malice.” (2)

Another “victim-centered” method is known as “trauma-informed,” which posits the cognitive effects on persons experiencing traumatic events. But experts have dismissed such notions as “psychiatric folklore,” lacking scientific verification, and even as “junk science.” (3)

Victim-centered methods have been discredited by a number of groups. The Air Force Office of Special Investigations found such methods to be “inappropriate and irresponsible.” (4) In 2015 the Arizona Governor’s Commission to Prevent Violence Against Women issued a letter saying Start by Believing “creates the possibility of real or perceived confirmation bias” and “strongly cautioned” state law enforcement agencies from using Start By Believing. (5)

The petition demands that the Department of Justice “promptly suspend its support for programs that call on detectives and investigators to reject their most basic of principles of fairness and that threaten to unravel the very fabric of our nation’s justice system.”

Journalist Emily Yoffe has termed victim-centered theories “junk science” because of their lack of scientific support and the circular logic they utilize. (6) Additional information is available in the CPI White Paper, ‘Believe the Victim:’ The Transformation of Justice. (7)

Links available here:

http://www.prosecutorintegrity.org/pr/over-100-law-professors-others-call-on-doj-to-stop-junk-science-victim-centered-methods/

This means, as a rule, you must prove your innocence.

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

Army CID made a number of amateurish mistakes in identifying the accused in a military sexual assault case and then failing to secure or gather supporting evidence that may have helped the prosecution. (One of the problems in MCIO investigations these days is that they are conducted as “victim-centric” “investigations,” not as criminal investigations. That means a contrived or command directed confirmation bias which misses or loses evidence for the defense and the prosecution.) This investigation is another example of why neither trial nor defense should take CID (or other LE) investigations at, dare I say it, face value.

The military judge found that SPC Al-S showed the CID agent appellant’s photograph from SPC Al-S’s phone.14 The CID agent then showed the single photograph to SPC AM who immediately identified appellant as the person who assaulted her at the dance party. Prior to showing SPC AM the photograph, the CID agent did not arrange a photo array or present SPC AM any other options but to say that the photograph was or was not the person who assaulted her. This court also notes that the government did not present evidence or any exigent circumstances to explain the CID agent’s decision that it was necessary to show SPC AM the single photograph. The military judge concluded that the identification method used by the CID agent was unnecessarily suggestive. This issue is unchallenged on appeal and we agree with the military judge’s conclusion that the pretrial identification was unnecessarily suggestive.

A footnote tells us that

Even without the CID agent showing SPC AM appellant’s Facebook profile picture before trial, SPC AM would have seen the photograph absent any error in law enforcement procedures. While SPC AM was waiting to be interviewed by CID, her father sent her the picture of appellant to her phone. She opened up the picture but “didn’t even take a glance at it” since she was waiting for the interview. However, after CID showed her the picture of appellant from Al-Shamesi’s phone, she looked at the picture her father sent and confirmed that they were the same photographs.

(Further potential contamination.) As I read the opinion, CID did nothing to copy and or preserve any of the photographs or images used by the complaining witness for her out-of-court identification which was a foundation for the in-court identification. By that failure, the CID set up the opportunity for the defense to impeach her with other photographs of the night in question and which CID had apparently failed to look for.

So, on appeal, the issue is whether the military judge made a mistake in letting the complaining witness identify appellant after having been exposed to an unnecessarily suggestive pretrial identification procedure.

Here are some initial resources to get the defense counsel started in challenging identifications.

NIJ, OJP, USDOJ, Eyewitness Evidence: A Guide for Law Enforcement (and DC seeking to XE on a bad ID). https://www.ncjrs.gov/pdffiles1/nij/178240.pdf

You might also take a look at the following for a starting point when ID is an issue. Wise, Richard A. and Safer, Martin A., “A Method for Analyzing the Accuracy of Eyewitness Testimony in Criminal Cases” (2012). Court Review: The Journal of the American Judges Association. 387. http://digitalcommons.unl.edu/ajacourtreview/387

Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

So, here is some relevant activity regarding possible changes to the federal rules of evidence.

Invitation for Comment on Evidence Rule 801(d)(1)(A)

As part of its ongoing work, the Advisory Committee on Evidence Rules is considering a possible amendment to Rule 801(d)(1)(A) that would provide for substantive admissibility of more prior inconsistent statements than is currently permitted under the Rule. The Committee invites comment from members of the bench, bar, and public on their experience with the rule and potential rule amendment ideas that have been identified by the Committee. Please submit any comments by August 31, 2017 to Rules Comments@ao.uscourts.gov(link sends e-mail). For further information, please see Tab 3 of the meeting materials for the Committee’s spring 2017 meeting.

• Invitation for Comment from Advisory Committee on Rules of Evidence (July 6, 2017) (pdf).

PRELIMINARY DRAFT OF . . . Evidence Rule 807, at 67.

See here for the Notice of the opportunity to comment, no later than February 2018. Important changes or additions seem to be:

• the court determines that it is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and any evidence corroborating the statement; and
• it is offered as evidence of a material fact;
• it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;
• the party offering the hearsay has given reasonable prior written notice.

D. Whenever the Commonwealth intends to introduce expert opinion testimony at trial, the attorney for the Commonwealth shall notify in writing the accused of the Commonwealth’s intent to present such testimony not later than 14 days before trial, or as otherwise ordered by the court. The notice shall include the witness’s name and contact information, a summary of the witness’s qualifications, the substance of the facts and opinions to which the witness is expected to testify, a summary of the grounds for each opinion, and copies of written reports, if any, prepared by the witness.

There is a reciprocal requirement for the defense. The new VA rule is consistent with federal practice under Fed. R. Crim. Pro 16(a)(G), and with then Judge D. Vowell (Army) in her court-martial scheduling orders.

J. Each party shall provide to the opposing party a written list of names and addresses, if available, of all witnesses expected to testify at trial. Disclosure of rebuttal and surrebuttal witnesses is not required under this subsection. The Commonwealth shall provide a list no later than seven days before trial; the accused shall provide a list no later than three days before trial. Upon motion of either party, the court may modify the requirements of this subsection for good cause shown.

In military cases, this can be an issue where the list is not required until three days before trial. Anyone received a government witness list on Friday, before the Monday trial, and had to deal with a lengthy list of people not necessarily identified through discovery or investigative reports–huuuum? And then have to figure out if you need additional witnesses or investigation of your own? And then tried to get a delay to deal with it—huuum?

K. Upon indictment, waiver of indictment, or return of information, or prior to entry of a guilty plea or plea of nolo contendere, whichever first occurs, the attorney for the Commonwealth shall disclose to the accused all information in its possession, custody, or control that tends to negate the guilt of the accused, mitigate the offense charged, or reduce punishment, subject to modification or limitation by the court. Information that tends to impeach the Commonwealth’s witnesses shall be produced no later than seven days prior to the date scheduled for trial. The duty to disclose under this subsection shall not require any request, demand, or notice by the accused and shall be continuing in nature, as otherwise required by law.

The obligation to provide Brady material is an ongoing issue and has been addressed by some federal courts regarding IAC claims; it allows an accused to make an informed decision. I’m not sure it’s a big issue in the military because of how PTA’s are timed or negotiated, but it would be a welcome reform.

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

As you read the case, please note this turned into a military judge alone case–a case in which the MJ was to be the fact-finder on guilt or innocence, and the imposer of punishment.

Here is a most troubling part of the facts for which all defense counsel have fair warning and should include as part of their voir dire of an Air Force military judge.

The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked by the trial defense counsel if it was the “standard in practice as an SVC to meet with the military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in [R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, sometimes before the trial begins and discuss just kind of administrative matters.”

The court finds “nothing nefarious” going on here. So, let’s apply the maxim that you attribute to stupidity vice malice, what happened here still doesn’t make a lot of sense.

• Why meet with the MJ in person for this question?
• Why meet with the MJ alone?
• Why not give the other parties a heads-up?

Why ask those questions?

• Is not the SVC part of the email chain for matters related to the trial?
• If there is a motion regarding the CW, the SVC would have been copied, so why need to ask the MJ if one has been filed?
• Why not ask the court-reporter?
• Why not ask the defense counsel?
• Why not ask the trial counsel?
• And as a last resort, why not email the MJ copy all with the question about the motion?

In addition to the arguments in the court, is this not the equivalent of a witness meeting with the judge off-the-record? The court noted:

[T]he line between administrative and substantive matters blurs quickly. What may start as a simple discussion of administrative matters can easily become a discussion of substantive issues. Therefore, the military judge’s in-chambers meeting with the SVC, without the parties, was fraught with risk. This risk was quickly realized once the SVC revealed the facts and circumstances surrounding the trial defense counsel’s pretrial interview with the SVC’s client, a Government witness who also maintained recognized legal interests in the proceedings.

In what other court or court system in the United States is a witness–the central witness–even allowed to get to the judge’s chambers?

Only in the military where we have Special Status Counsel.

Or, that’s how I interpret a 2-1 Order in H.V v. Kitchen and Randolph (RPI), MISC D. No. 001-06 (C.G. Ct. Crim. App. 8 July 2016).

At trial, the defense sought mental health records of the complaining witness. After litigation on the issue, the military judge ruled

that M.R.E. 513 did “not prevent the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used.” Accordingly, she ordered the Government to produce for the defense the mental health records of Petitioner for a stated period of time[.]

A decision I personally agree with.

The CGCCA found this to be an issue of first impression within the military. The court found one federal published opinion and one state and one federal unpublished opinions.

Stark v. Hartt Transportation Systems, Inc., 937 F.Supp.2d 88, 92 (D. Me. 2013), a civil case–a particularly important distinction from a criminal trial where a right to defend is an important constitutional principle.

One wonders if the CGCCA considered:

‘blanket assertions of privilege are extremely disfavored,'” because “persons claiming a privilege ‘must establish the elements of privilege as to each record sought . . . so that the court can rule with specificity.'” In re Grand Jury Matters, 751 F.2d 13, 17 n.4 (1st Cir. 1984), quoting In re Grand Jury Witness (Salas), 695 F2d 359, 362 (9th Cir. 1982) and Matter of Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 66 L. Ed. 2d 291, 101 S. Ct. 531 (1980). In re Grand Jury Subpoenas Duces Tecum, 638 F. Supp. 794, 799 (D. Me. 1986)

Sylvestri v. Smith, No. 14-13137, 2016 WL 778358 (D. Mass. Feb. 26, 2016)(unpub.), a state criminal case which holds the contrary to Stark.

United States v. White, No. 2:12-cr-00221, 2013 WL 1404877 (S.D.W.V. April 5, 2013)(unpub.), a federal criminal case that “aligns with the Stark case.”

After analysis, the CGCCA concluded that the military judge erred, over a vigorous dissent.d

Here’s the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer’s testimony. The federal constitution, as interpreted by Brady v. Maryland and its progeny, requires prosecutors to disclose to defendants any favorable, material evidence known to the prosecution team, including evidence relating to a witness’s credibility. Much impeachment evidence can be found in a police officer’s personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.

Here’s what I ask for in my discovery requests.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes, but is not limited to: Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked, and investigations regardless of result into allegations of malpractice. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue, in military cases. In fact some years ago I had a case where the NCIS gave a Henthorn disclosure to the prosecutor which turned out to be substantially and materially false.

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 evidence is not hearsay.

(d) Statements that Are Not Hearsay. ( 2 ) An Opposing Party’s Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject;

You might think here, Special Victim’s Counsel. Some years ago I had this come up in an Air Force sexual assault case where the SVC made statements during a Mil. R. Evid. 412 motions session. After the motions session, I asked the military judge for a ruling that what the SVC said the complaining witness said were statements within Mil. R. Evid. 801(d)(2)–he agreed.

(D) was made by the party’s agent or employee[.]

You might think here SARC or mental health provider.

However, don’t assume that the courts will agree with me, but it’s worth a try. Sometimes being an effective military defense lawyer is the willingness to try something new or different.

Note in an earlier post I mentioned that RCM 103(16) is helpful in giving a definition of who is a party to a court-martial. But, I agree the rule does not list a complaining witness (improperly referred to as a “victim” elsewhere).

It seems to me, and I have argued, that the explosion of “rights” afforded a complaining witness (CW) lay a sufficient groundwork for naming the CW a de facto party to the case. I have laid out quite a few of the new “rights” and privileges which I think, by a totality of the circumstances make the CW a party. Certainly we are seeing CW’s and their SVC claiming to be able to do much in a case that an accused (or the prosecution) can do. For example, I am in the middle of a post-trial case where I helped trial defense counsel submit a motion for a post-trial hearing, raising a Griffiths motion (a favorite motion of mine). The SVC wanted to file an argument against as to why the military judge should deny a finding of not guilty on legal insufficiency grounds.

Don’t get too excited, I’m not, I’ve been practicing as a military appellate defense counsel for too many years–and it doesn’t matter whether it’s the Air Force (AFCCA), Army (ACCA), Coast Guard, Navy, Marine Corps that you practice in–every military appellant has an uphill battle. But I do think you can’t win a battle unless you make an attack. That’s how this military defense lawyer thinks about creativity in the court-room.

Issue: Whether the Confrontation Clause permits the prosecution to introduce an out-of-court, testimonial translation, without making the translator available for confrontation and cross-examination.

That is the issue in Ye v. United States, a history of which can be found at SCOTUSBlog.

As a military defense lawyer or military appeal lawyer I have had the case were documents or testimony is in a foreign language. I have learned that even honest interpreters will not correctly interpret something. The failure to correctly interpret can be based on cultural biases or taboos. For this reason it is important to have your own interpreter assigned, and at times the opportunity to challenge the interpretation.

· Police can tell when a suspect is lying · People confess only when they have actually committed the crime they are being charged with · Most judges and jurors fully understand court instructions · Eye-witnesses are always the most reliable source of case-related information · Most mentally ill individuals are violent · All psychopaths are criminals · We need to be ‘tough on crime’ by giving convicted felons harsher punishments · The death sentence is an effective way to deter criminal activity · Excitement improves memory

What do you think the right answer is to the above statements. Have a go before you — read on for the point.more

Research has demonstrated that none of these statements is true, yet we found that, in our questionnaire of 50 true or false items just like this, our sample of police officers scored no better than the general public. Police officers got 39 per cent wrong and members of the public got 37 per cent wrong. The police seemed to know as little about these important policing issues as everybody else.

Why do police have such out-of-date psychological theories? By Julia Shaw who is a senior lecturer and researcher in the department of law and social sciences at London South Bank University. Her first book, The Memory Illusion, will be published in June.

While numerous studies have hailed mindfulness meditation for its potential benefits for the mind and body, new research suggests it may have a negative impact on memory. While mindfulness meditation is believed to be beneficial for the mind and body, researchers say the practice may impair the ability to accurately recall memories. Published in the journal Psychological Science, the study suggests individuals who engage in mindfulness meditation may have less accurate memories than those who do not take part in the practice.

Look for this as an additional piece of potential junk science in courts.

(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 is, there is no single verbal, nonverbal or physiological cue uniquely related to deception.

See, Grimes, infra.

Some may be familiar with how military law enforcement tells commanders and other how they can spot a liar. There has always been a healthy suspicion about this so-called ability. Here is some current reportage that is a useful reminder to challenge their assumptions.

David Robson, The best (and worst) ways to spot a liar, BBC, 7 September 2015.

Thomas Ormerod’s team of security officers faced a seemingly impossible task. At airports across Europe, they were asked to interview passengers on their history and travel plans. Ormerod had planted a handful of people arriving at security with a false history, and a made-up future – and his team had to guess who they were. In fact, just one in 1000 of the people they interviewed would be deceiving them. Identifying the liar should have been about as easy as finding a needle in a haystack.

Using previous methods of lie detection, you might as well just flip a coin

So, what did they do? One option would be to focus on body language or eye movements, right? It would have been a bad idea. Study after study has found that attempts – even by trained police officers – to read lies from body language and facial expressions are more often little better than chance. According to one study, just 50 out of 20,000 people managed to make a correct judgement with more than 80% accuracy. Most people might as well just flip a coin.

Ormerod’s team tried something different – and managed to identify the fake passengers in the vast majority of cases. Their secret? To throw away many of the accepted cues to deception and start anew with some startlingly straightforward techniques.

Bill Grimes, Looking for Lying in All the Wrong Places, The Jury Expert, 28 Aug. 2015.

In 2006, two of the premier researchers in the field of deception detection, Charles Bond and Bella DePaulo, re-examined the results of over two hundred studies on how well people detect lying. They found that people were able to detect lies 54% of the time. You’d get 50% right by pure chance, so that’s not very impressive (Bond & DePaulo, 2006). Another study tested 13,000 people to see how many of them were good at spotting lies (O’Sullivan, 2008). Thirty-one were good at it. That is 2-tenths of one-percent (.02%), again, not very impressive.

Research also shows that lie experts – police interrogators, customs agents, even lawyers – aren’t any better at detecting lying than anyone else (Bond & DePaulo, 2006). Decades of research show that lie detection is a near-chance game (emphasis added).

You should be aware that there is a dispute about these issues, some of which is reflected in Michael G. Aamodt Ph.D.; Heather Custer M.S., Who Can Best Catch a Liar?: A Meta-Analysis of Individual Differences in Detecting Deception. 15 (Spring) FOR. EXAMINER, at 6 (2006).

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.

Second, we know from medical science that a person can do a whole lot of things which does include the voluntary, and apparently consensual engagement is sexual activity. Here is an example, out of many, how a person can engage in a lot of thoughtful and physical activity and not remember it.

Enter Keith Fraley, a 19-year-old second year student of software engineering at Michigan Tech college, and his tweet about his roommate, Mark, a mechanical engineering student, who arrived home wasted and managed to design an entire plane – and woke up with no memory the next day.

Meet ‘Mark’, the crazy genius who designed an aeroplane while drunk, The Guardian.

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[.]
• Among the evidence the Government seeks to offer to prove the appellant’s guilt is Mrs. Rios’ testimony regarding her husband’s involvement in the purportedly criminal activity. Mrs. Rios’ attorney, however, informed the military judge that his client intends to invoke her privilege (spousal incapacity) under MILITARY RULE OF EVIDENCE 504(a), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.).
• The Government sought a preliminary ruling on whether the appellee’s wife could be compelled to testify under the exception found in MIL. R. EVID. 504(c)(2)(D). The military judge ruled that the appellee’s wife may validly invoke the privilege under MIL. R. EVID. 504(a), and that the exception found at MIL. R. EVID. 504(c)(2)(D) in no way limits that invocation.
• The Government now appeals that ruling under Article 62, UCMJ. We have thoroughly reviewed the record of trial and the briefs submitted by the parties. Following that review and our consideration of all the materials before us, we conclude that the appeal is properly before us and find no error in the military judge’s findings of fact and conclusions of law.

Interestingly the opinion does not address the wife’s Fifth Amendment privilege or immunity. Perhaps that was not an issue at the time.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.” Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . .. To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects. Davis, 415 U.S. at 316. But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.” Id. at 316‐17. The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

And for the sexual assault case:

In Olden v. Kentucky, defendants were prosecuted for, among other things, rape; the defense was consent and that the victim had a motive to lie to conceal her extramarital relationship. 488 U.S. 227, 228‐30 (1988) (per curiam). The state court prevented defendant from exposing this alleged motive to lie, but the Supreme Court concluded that this ruling “failed to accord proper weight to petitioner’s Sixth Amendment right to be confronted with the witnesses against him.” Id. at 231 (internal quotation marks omitted). Here, as in Olden, the testimony of a witness whose motive was at issue was “central, indeed crucial, to the prosecution’s case.” Id. at 233. “If the purpose of cross‐examination is to explore more than general credibility, the subject of inquiry is not collateral.” Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir. 1979).

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 trial violated her rights under the Confrontation Clause is foreclosed by precedent.

Sayeth a headnote. Factually it appears:

Prior to trial, Ye and Zhenyan objected that it would violate the Confrontation Clause of the Sixth Amendment to admit statements they had made to DHS unless the USCIS Language Line translators who assisted them were called to testify. After considering testimony and other evidence regarding the nature of USCIS’s translation services, the district court overruled the objection. Ye argues on appeal that the district court erred by subsequently admitting the translated statements at trial. In United States v. Nazemian, 948 F.2d 522, 525–28 (9th Cir. 1991), we held that, as long as a translator acts only as a language conduit, the use of the translator does not implicate the Confrontation Clause. Ye argues that Nazemian is inconsistent with the Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004), [and its progeny]. As Ye correctly concedes, however, we already have held that Nazemian remains binding circuit precedent because it is not clearly irreconcilable with Crawford and its progeny. Ye alternatively argues that the district court misapplied Nazemian in admitting the translated statements here.

The “Nazemian [test] requires analyzing four factors:

“(1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter’s qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.”

But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door. I might have successfully litigated a motion in limine to exclude evidence. But now I have the key and have to be careful I don’t give it to the prosecution to use.

There are other ways the defense can open the door to otherwise inadmissible evidence. United States v. Martin just decided by NMCCA is a case in point. Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.

From legal precedent, we discern several, nonexclusive factors relevant to an assessment of whether “human lie detector” testimony was prejudicial: (1) the role of the Government counsel in initiating or furthering objectionable testimony (Kasper, 58 M.J. at 314); (2) the role of the defense counsel, particularly if it appears the defense initiated the testimony for strategic reasons (United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999)); (3) the defense’s failure to object or request cautionary instructions (United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999)); (4) whether the witness has been asked for specific conclusions or their opinion about the truth or falsity of another’s statements or allegations, or about whether a crime occurred (United States v. Anderson, 51 M.J. 145 (C.A.A.F. 1999); United States v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998); United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995)); (5) whether the testimony in question is on a central or peripheral matter (Kasper, 58 M.J. at 314; United States v. Robbins, 52 M.J. 455 (C.A.A.F. 2000); Birdsall, 47 M.J. at 404); (6) whether the trial was before members or by military judge alone (Robbins, 52 M.J. at 455; United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996)); and (7) the remedial action, if any, taken by the military judge. United States v. Eggen, 51 M.J. 159 (C.A.A.F. 1999). See United States v. Jones, 60 M.J. 964, 969 (A.F.Ct.Crim.App. 2005). While the trial was before members and while Cpl AI was asked specifically whether he believed his wife was lying – the central issue in this case – we are not convinced that the error had an unfair prejudicial impact on the member’s deliberations.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing. That audio could then be transcribed into a verbatim transcript. The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

This was a reason I always wondered why the Air Force and Coast Guard didn’t record the 32. Although the cynical thought was that it prevented the defense from having a record to use for impeachment.

But here is the question for the current Article 32 pretrial hearing. Can the hearing be properly used as a substitute for a deposition, and testimony used in evidence should a witness become unavailable for trial. I think the answer should be NO. Largely I think this is because of the intent to avoid discovery and an appropriate amount of cross-examination of witnesses who did attend. There is now almost no discovery and the ability to cross-examine witnesses who do appear is more limited. Thus there is a strong constitutional argument that trying to use a transcript of Article 32 testimony violates the Sixth Amendment Confrontation Clause.

While the likelihood of needing prior testimony may not be a frequent event, there may come another day where this collateral impact of changing the Article 32 may come back to haunt. On balance the intent to adversely affect the ability of the defense to prepare for and defend against a charge has been accomplished-but at a cost to a potential prosecution.