Articles Posted in Evidence

This week we received the decision of the Army Court of Criminal Appeals of a client accused of homosexual sexual assaults. He had been convicted and sentenced to 14 years of confinement. We raised many issues during his appeal. The Army Court found a serious error by the military judge in denying the defense presenting…

United States v. Filmore. 1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense objection) gets…

Here’s how we start our “discovery” requests–as “Disclosure Requests.” The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States…

The CAAF held that there is no right of confrontation at sentencing. The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do). United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000). The question in the title of…

As Prof. Colin Miller TG points out in a new post, Fed. R. Evid. 804(b)(6), applies to both sides. The Mil. R. Evid. contains the same language. 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…

Well, I use Wikipedia for research. But, I use it “in some limited situations . . . for getting a sense of a term’s common usage.” Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information). See…

Impeachment with conviction. 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…

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year. Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions Confrontation Clause: More Notice and Demand Rules? Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations Circuit…

Waive it or raise it at work – and at a court-martial under the UCMJ. Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010: This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there…

An important change to the Federal Rules of Evidence begins today. That means, absent Presidential action, the rule will take affect in the military no later than 18 months from now. This is a significant change requiring the prosecution to corroborate statements against penal interest. On December 1, 2010, a new amendment to the Federal…