The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.” U.S. Const. amend. VI. One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315 (1974). This is the“principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316. A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.” United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted). Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’” Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

Here’s what the defense wanted to XE on and what the USA had successfully excluded by a motion in-limine, as objectionable under FRE 403.

Before Defendant’s trial began, the government filed a motion in limine to prohibit Defendant from offering evidence concerning a prior determination made by a different federal district court judge that the MTD inspector was not credible. In United States v. Variste, No. CR 06-1349 BB (D.N.M.), the district court issued a suppression order containing a finding that the court did not believe the inspector’s testimony. Specifically, the Variste court found: “This Court does not believe [the inspector] detected the odor of raw marijuana emanating from the back of the trailer because he did not follow up and that information was not communicated to any other law enforcement personnel involved or given as a basis for any subsequent stop.”

The court found this to be an issue of first impression within the Tenth, so:

Although we have not addressed the issue of whether past judicial credibility determinations are admissible under Rule 608(b), several of our sister circuits have done so and held that they are. United States v. Cedeño, 644 F.3d 79, 82-83 (2d Cir.), cert denied, 132 S. Ct. 325 (2011); United States v. Dawson, 434 F.3d 956, 957-59 (7th Cir. 2006) . . . United States v. Whitmore, 359 F.3d 609, 619-22 (D.C. Cir. 2004).

The court concluded that the proposed cross-examination was “relevant and highly probative.” The court then analyzed a number of factors to find that there was constitutional error in excluding the proposed evidence. After an HBRD analysis the case was returned for a new trial.

Any CID, NCIS, OSI, CGIS agents out there who have testified and a military judge (perhaps extraordinarily so) has found them not credible in a prior case? Discovery?

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.”

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011), Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads” The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar “apples to oranges” idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define “peer-to-peer file sharing”).).

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Citing Wikipedia is as controversial as it is common.2 Some courts approve it, others condemn it. Compare United States v. Lawson, 677 F.3d 629, 650 (4th Cir. 2012) (stating that the court is “troubled by Wikipedia’s lack of reliability”), Bing Shun Li v. Holder, 400 Fed. App’x 854, 857-58 (5th Cir. 2010) (expressing “disapproval of the [immigration judge]’s reliance on Wikipedia and [warning] against any improper reliance on it or similarly unreliable internet sources in the future”), Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008) (noting Wikipedia’s acknowledgment that, “at any given moment,” an entry “could be in the middle of a large edit or it could have been recently vandalized” (citation and internal quotation marks omitted)), and In re Marriage of Lamoure, 132 Cal. Rptr. 3d 1, 15 (Cal. Ct. App. 2011) (“We do not consider Wikipedia a sufficiently reliable source” for defining the term “noncustodial.”), with Prude v. Clarke, 675 F.3d 732, 734 (7th Cir. 2012) (citing Wikipedia entry, in the context of an Eighth Amendment challenge, for the proposition that an anal fissure “is no fun at all”), United States v. Brown, 669 F.3d 10, 18 & n.12 (1st Cir. 2012) (citing Wikipedia for its definition of “sovereign citizen movement,” one of a criminal defendant’s “atypical legal beliefs”), Murdock v. Astrue, 458 Fed. App’x 702, 705 n.3 (10th Cir. 2012) (citing Wikipedia for “some examples of block lengths from cities in this country”), and State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define “peer-to-peer file sharing”).

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.

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

This reads as if the military judge intrudes himself to ask questions intended to elicit facts and testimony to support a finding on one or elements. In other words the “second” trial counsel role. To paraphrase:

[I] note at the outset that this [reads as if this] military judge [might be] more aggressive in his use of “clarifying questions” than many judges would dare. . . .In the military, a judge may not abandon his role as an impartial party and assist in the conviction of a specific accused.”

United States v. Reynolds, 24 MJ 261, 264 (C.M.A. 1987).

A military judge has a difficult balancing act which in Ramos, the court called the judges’ tight-rope and the maintaining of the “full fulcrum.”

This Court has commented on the tightrope over which a judge must tread in assuring, on the one hand, that court-martial members are provided the information that they need, while, on the other, “scrupulously avoiding even the slightest appearance of partiality.” United States v. Shackelford, 2 M.J. 17, 19 (CMA 1976); see United States v. Dock, 40 M.J. 112 (CMA 1994); United States v. Clower, 23 U.S.C.M.A. 15, 48 C.M.R. 307 (1974).

United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995). And:

There is a strong presumption that a military judge is impartial in the conduct of judicial proceedings. “When a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of [the] trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.” We apply this test from the viewpoint of the reasonable person observing the proceedings. Failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial.

United States v. Foster, 64 M.J. 331, 333 (C.A.A.F. 2007).

Here is a potential teaching point for defense counsel. We all know judges who are perceived to put their thumb on the scales and help out trial counsel (and trial counsel have similar perceptions about other judges helping the defense). Let’s take a look at some other cases. And defense counsel should remember it is OK to object if done in a professional and tactful manner. I have found a need to do that several times. If the defense doesn’t object it’s going to be a waiver/plain error/IAC issue potentially.

[M]military practice and procedure expressly provide for questioning of witnesses by a military judge (see Mil. R. Evid. 614(b), Manual, supra), and our case law requires that it be done in a fair and impartial manner. . . . the mere fact that the answers to these questions may help or hurt one party’s case does not suggest partiality, especially where the military judge makes clear his neutral purpose in asking these questions.

United States v. Cooper, 51 M.J. 247, 250 (C.A.A.F. 1999), but see, United States v. Smith, 52 M.J. 337, 342 (C.A.A.F. 2000)(military judge should not be trying the prosecution’s case).

Mil. R. Evid. 614(b) is apparently broad:

Interrogation by the court-martial. The military judge or members may interrogate witnesses, whether called by the military judge, the members, or a party.

As to the military judge in the Cooper case, the Air Force Court of Criminal Appeals had noted:

There was no objection, on the record, to any of the judge’s comments–therefore, once again, we must approach this issue with a “plain error” analysis. We note at the outset that this military judge was more aggressive in his use of “clarifying questions” than many judges would dare. However, in the absence of objection on the record, it is very difficult to find plain error.

51 M.J. at 249.

Several reasons exist for our conclusion that this is not an extraordinary case requiring reversal of appellant’s conviction. First, defense counsel lodged no objection to the military judge’s curative instructions on the grounds that the judge’s comments further evidenced his bias for the Government. See RCM 801(g) (effect of failure to raise defenses or objections). Moreover, he made no motion to disqualify the military judge from continuing to sit in this case on the basis of these judicial remarks. Third, the judge’s reprimand, although probably unjustified and certainly improper before the members, was no more than a mild rebuke of defense counsel (“having halfway chewed him out”). Finally, the now-challenged comments were couched within unequivocal instructions from the judge protecting appellant from any impermissible use of his comments.

51 M.J. at 250.

Questioning the Witnesses. A military judge must scrupulously avoid “even the slightest appearance of partiality.” A military judge’s “influence . . . is necessarily and properly of great weight,” and his “last word is apt to be the decisive word.” On the other hand, because military judges are more than “mere referees,” it is appropriate for them to take an active part in the trial. Thus, while military judges may not become partisan advocates, they may and “sometimes must ask questions . . . to clear up uncertainties in the evidence or to develop the facts further.”

51 M.J. at 253 (Gierke, J., concurring inpart and in the result).

It seems to me from the cases (mainly members cases) that there are several common threads: a military judge does not err when asking questions to “clarify factual uncertainties,”or “clarify ambiguity,” and a military judge does not err if also seen to be acting in a objectively “fair and impartial manner,” and the defense better object. See, Cooper, supra; Ramos, supra, United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (whether military judge should have recused self is viewed objectively looking at the totality of the circumstances). However, a military judge may err if asking questions to solicit facts to support the elements of the offense. On the one hand the military judge is a facilitator on the other a trial counsel.

We regularly tell members that it is not their job to aid one side or the other, that there are not there to fill in holes in the case. To a large degree there is a level of tolerance from both sides especially with new counsel. However, the fact that counsel are new and inexperienced is not a reason for the military judge to become an additional counsel. Military judges acting as fact-finders ought to subject themselves to a similar admonishment as we give members.

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer. So, is a letter of apology written by the defendant to the victim inadmissible under this Rule? According to the recent opinion of the Supreme Court of Indiana in Gonzalez v. State, 2010 WL 1988134 (Ind. 2010), the answer is “yes” if the letter was written as part of the plea bargaining process.

The fact of a pending appeal does not defeat admission, but it may be brought up and discussed. Mil. R. Evid. 609(e).

A summary court-martial may not be used to impeach under this rule. There may be other ways to impeach with conduct subject to discipline at a summary court-martial, but not Mil. R. Evid. 609. (Further evidence that an SCM is not considered a “conviction?”)

Here is another reminder:

Fourth Circuit vacated and remanded a conviction based on the ineffective assistance of defense counsel who failed to effectively challenge admission of defendant’s prior convictions for purposes of impeaching his credibility as a witness because the convictions had been reversed. United States v. Russell, 221 F.3d 615 (4th Cir. 2000) (No. 99-4117).

Under FRE 609(e), for purposes of attacking a witness’s character for truthfulness, the “pendency of an appeal” from a defendant’s conviction “does not render evidence of a conviction inadmissible.” How does this rule operate once the appeal is decided? The Fourth Circuit examined this problem and decided that “[a]lthough the pendency of an appeal does not preclude use of such a conviction for impeachment purposes … it is elementary that once a conviction has been reversed, it cannot be used to impeach the accused.” Russell, 221 F.3d at 620 n.6.

You’ve seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, “Objection, your Honor,” and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, “Objection,” in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.

Mil. R. Evid. 103(a)(1) requires that when making a motion counsel at court-martial, “[state] the specific ground of objection, if the specific ground was not apparent from the context[.]”

Remember that another requirement related to objections is an offer of proof where the MJ sustains a prosecution objection.

Under Federal Rule of Evidence 103(a)(2), the objecting party must make an offer of proof to the court, or else show that the substance of the excluded evidence was apparent from the context of the proceeding, to preserve an objection to a ruling excluding evidence. Fed. R. Evid. 103(a)(2); United States v. Quinn, 123 F.3d 1415, 1420 (11th Cir. 1997). Here, the government notes, there is no indication that the district court knew the nature of the evidence since Henderson did not identify it until a post-trial motion and his initial appellate brief. After trial, Henderson claimed that he wanted to present evidence that Collins was also dismissed because he had engaged in a domestic dispute with his wife that involved his service weapon. He argues that he could not have made an offer of proof at trial because the district judge did not permit bench conferences, requiring parties to reserve issues they did not wish to discuss before the jury to a time when the jurors were not required to be present in court. Moreover, he indicates that the district judge also forbade “speaking objections,” where the objecting party explains the basis for its objection, allowing the objecting party to voice only a very abbreviated basis for its complaint.

United States v. Henderson, 409 F.3d 1293, 1298 (11th Cir. 2005).

And finally be attuned to the counsel who makes a “speaking” objection in front of the members. Here is a little piece from the Utah State Bar Journal about speaking objections. Note the reference to Senior Judge Cox, of CAAF. The three primary reasons for such objections cited are:

1. to coach a trial witness;
2. to argue to the jury during trial – before the appropriate time for closing argument; and
3. to make at least some objection when an attorney is at a loss over what to say about bothersome evidence or argument.

Romero’s counsel offered a speaking objection that the allegation was made by Cuellar, that it was not a conviction, that it was not a proven fact, and that there was no police or incident report. At sidebar, the district court overruled the objection and admonished defense counsel for arguing to the jury during an objection.

United States v. Romero, No. 08-40793, 2009 U.S. App. LEXIS 17350, at *7 n.2 (5th Cir. Aug. 4, 2009).

The prosecutor’s speaking objection misstating the law on the presumption of innocence was improper. A new trial is required if that misconduct taken in the context of the entire trial prejudicially affected the defendant’s substantial rights so as to deprive him of a fair trial. See United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996); United States v. Malone, 49 F.3d 393, 398 (8th Cir. 1995); United States v. McGuire, 45 F.3d 1177, 1189 (8th Cir. 1995), United States v. Emmert, 9 F.3d 699, 701 (8th Cir. 1993); United States v. Joson, 968 F.2d 768, 770 (8th Cir. 1992). Having reviewed the trial transcript, we conclude that the improper remarks could not reasonably have affected the jury’s verdict. See United States v. Alanis, 945 F.2d 1032, 1037 (8th Cir. 1991).

United States v. Grassrope, 342 F.3d 866, 871 (8th Cir. 2003) cert. denied Elder v. United States, 537 U.S. 1140 (2003).

And really finally of course, here’s how not to make an objection – and get removed from court in hand-cuffs in front of the members and your client.

Appellant Maurice Elder (“Elder”) seeks review of his conviction and sentence on cocaine possession and distribution charges. With respect to his conviction, Elder argues that he was denied due process of law when the district court had lead defense counsel removed from the courtroom, especially given the nature of that removal [in handcuffs]. A careful examination of the record, however, reveals a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges. Over much of the trial and immediately prior to her removal, counsel was repeatedly warned about yelling at the court and making sarcastic remarks.

United States v. Elder, 300 F.3d 996, 0–2 (9th Cir. 2002).

The dissenting judge had this to say:

This case is remarkable for at least three reasons, and for these reasons, I must dissent. First, Elder’s trial counsel x was physically brutalized by the District Judge in front of the jury for correctly insisting that the Judge was mistaken about a prior ruling he had issued in her client’s favor. Second, in explaining his treatment of x, the District Judge stated before the jury that she deserved what she got because she was “trashing the United States.” In other words, she was unpatriotic. Third, the majority cites to a California state court decision as support that defense counsel is a bad person, with a history of “surly, disruptive, and contemptuous behavior.” Majority op. at 8281. In doing so, the majority ignores the fact that the criticism of defense counsel throughout her career may be caused in part by anti-feminism within the legal community. In particular, some in the legal profession may be more offended by aggressive and combative litigation tactics from a female attorney than from her male counterparts.

United States v. Elder, 300 F.3d 996 (9th Cir. 2002).

Prof. Colin Miller, Later On, We’ll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions.

As the text of this Rule [Indiana/Fed./Mil. R. Evid. 801(d)(2)(E)] makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated.