New jury instructions in New Jersey will warn that human memory is not foolproof and eyewitness testimony must be carefully scrutinized. Set to take effect on Sept. 4, the new instructions follow a landmark ruling last year by the New Jersey Supreme Court that makes it easier for defendants to challenge the reliability of eyewitness identifications, the New York Times reports. The decision also required juries to be instructed on the variables that could lead to mistaken identifications. The new instructions say accurate identifications may be hampered by stress, distance, poor lighting and differences in the race of the suspect and the witness. “Research has shown that people may have greater difficulty in accurately identifying members of a different race,” the instructions say. The instructions also warn of problems in lineups. The passage of time before a lineup or the behavior of a police officer during the process can influence the witness, the instructions say. Experts told the Times that the new instructions are expected to influence other state courts. University of Virginia law professor Brandon Garrett told the newspaper that the instructions are the most detailed and careful in the country.

Check out Instruction 7-7-2 in the current MJ Benchbook. There is no rule prohibiting the defense to seek a more detailed instruction citing research and the New Jersey rules as foundation, especially if this is a critical issue in the case.

Next step, can you get an expert in eyewitness identification issues.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

The Criminal Rules Enabling Act, Max Minzner, University of New Mexico School of Law July 10, 2012 46 University of Richmond Law Review 1047 (2012)

Abstract: The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA. This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.

An Afghan prosecutor has issued an arrest warrant for an American special forces commander over allegations that a police chief was murdered by a US-trained militia. He accused American officials of refusing to hand over evidence or to permit his investigators to interview the special forces commander, known to Afghans only as “John or Johnny”, who he alleges sanctioned the raid. The arrest warrant, which has been circulated to border posts and airports, is an embarrassment for the US military, which is facing growing criticism for links to militias controlled by warlords. In Kandahar, the militias have been accused of murder, rape and extortion.

The Post and Courier reports that:

Retired Air Force Chief Master Sgt. Don Matyszyk was looking forward to August when his son was going to return home from Germany. Instead, Matyszyk is on his way to Ramstein Air Base this week for the court martial of the man authorities say is responsible for his son’s death. Chris Matyszyk, 36, died Jan. 12, nearly two weeks after suffering a fatal punch to the face outside a pub in the German town of Landstuhl, near Ramstein. He never awoke from a medically induced coma that was supposed to control the swelling around his brain.

I posted some time ago about the Italian charges against a military officer’s involvement in renditions – here and here.