For an example of a case in which the government forfeited its right to object to the defendant’s admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).

Prof. Miller concludes:

Because the court thus found that the government caused Garcia-Garcia to be unavailable for trial and had the intent to render her unavailable for trial, it concluded that forfeiture by wrongdoing applied: “Because the government was responsible for rendering Garcia–Garcia unavailable as a witness, admission of the videotape would prevent it from benefiting from its own wrongdoing.” This conclusion is also consistent with another part of the Advisory Committee Note to Federal Rule of Evidence 804(b)(6), which states that “[t]he wrongdoing need not consist of a criminal act.”

Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial. But if there were to be a prior conviction there may be some interpretation necessary. So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we go.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Eleventh Circuit sidestepped the most interesting issue in the case.

So, today’s post:

So, what constitutes “confinement” for Rule 609(b)? This was an issue that the United States District Court for the Middle District of Florida did not need to address in its recent opinion in United States v. Sararo, 2012 WL 3041182 (M.D.Fla. 2012). But that didn’t stop the court from implying that a period of probation constituted “confinement” for Rule 609(b) purposes. . . . . I’m not sure what import to give to the court’s statement on probation as “confinement.” Was the court simply saying that even if probation is confinement, Meehan’s convictions were still more than ten years’ old? Or was the court implying that probation does constitute “confinement” for Rule 609(b) purposes? I don’t know, but the issue already could have been resolved when the Eleventh Circuit recently should have, but did not, address the issue.

In Colon the most interesting issue was whether a suspended sentence is “confinement” for Mil. R. Evid. 609(b) purposes, and the issue in Sararo related to probation after a conviction.

“Now what I want is, Facts.. . . Stick to Facts Sir!” (Charles Dickens, Hard Times, p. 1, Oxford World’s Classics, 1998.)

Evidence may be admissible under Mil. R. Evid. 803(8) as an exception to the hearsay rule. Prof. Colin Miller reminds us that the exception is intended to cover recorded facts, not opinions.

Federal Rule of Evidence 605 provides that The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. Conversely, Federal Rule of Evidence 614(b) provides that “[t]he court may interrogate witnesses, whether called by itself or by a party,” and Federal Rule of Evidence 614(c) provides that Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let’s consider the recent opinion of the First Circuit in United States v. Santana-Perez, 2010 WL 3491143 (1st Cir. 2010).

And here is how Professor Miller concludes the practical question of what to do rather than what’s the rule.

If a judge is testifying and a party objects, I could see the judge feeling that his integrity had been attacked. It seems to me, however, that the judge would mostly feel that his competence had been attacked and not that he was favoring one side over the other. And, of course, if the judge were indeed testifying, it would be clear that he made a mistake, and the trial could move on. But, if a judge engages in overly aggressive interrogation and a party objects, it is hard to see how the judge could take the objection as anything but the party calling his integrity into question. Moreover, because it is not a black and white issue like judicial testimony, it is easy to see the objection having lingering effects. I thus don’t see why an objection to judicial interrogation is required by an objection to judicial testimony is not.

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are “testimonial” and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their “own” conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).