Yesterday CAAF granted review of this issue:  “WHETHER APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE TRIAL COUNSEL ASKED A DEFENSE EXPERT WHETHER HE FOUND EXCULPATORY EVIDENCE, AND ARGUED TO THE MEMBERS THAT THE DEFENSE EXPERT FAILED TO FIND EXCULPATORY EVIDENCE AND FAILED TO FIND EVIDENCE SUGGESTING ANYONE OTHER THAN APPELLANT COMMITTED THE OFFENSES.”  United States v. Lewis, __ M.J. ___, No. 10-0484/AR (C.A.A.F. Aug. 10, 2010). 

I can find neither electronic hide nor electronic hair of ACCA’s decision, which I understand was a summary affirmance.

14 Responses to “CAAF grants review in Army case”

  1. Article16 says:

    Sounds violative of due process to me.
    Direct Evidence and Circumstantial Evidence are fine “mainstream” terms to throw around in front of members…they are at least also explained through standard instructions.
    Inculpatory and exculpatory, to my memory aren’t defined, rendering them potentially misleading or confusing (before members). Even if “exculpatory evidence” were defined it strikes me as a legal conclusion about the evidence (or lack thereof) with burden shifting connotations…
    …if it passes muster, why wouldn’t this tactic just be a feature of all defense expert cross-examination and prosecution arguments?
    Not saying it was prejudicial in this case, but prosecutors should be warned off the bootstrapping, and judges also should cut off legalistic terminology regardless of the side arguing. (e.g., I had a judge stop me for asking a witness what his understanding of Article 13 was…)

  2. repost says:

    it does seem pretty basic. no coincidence that this is an Army case.

  3. Phil Cave says:

    Seems to be a reverse of human lie detector testimony.
    I can’t find exculpatory, so it’s only inculpatory, and it’s true.
    Sounds like a variant of getting the accused to admit that another witness is lying, which violates case law as well as HLD.

  4. Anon says:

    Of course, this is taking the granted issue at face value, which is written by the defense counsel. The actual facts of the case may be different.

  5. Phil Cave says:

    And is sometimes rephrased by CAAF (DMLS)?

  6. Christopher Mathews says:

    Perhaps I’m missing something, but I really don’t see what would be objectionable about a line of questioning like this:

    Doctor, you found no evidence suggesting that the tissue samples under the victim’s fingernails came from any source other than the scratches on the accused’s face, did you? And although many people may have a particular blood type, it’s true isn’t it that the blood tests you performed did not exclude the accused as the source of the semen taken from the victim’s body? And although you say the DNA you tested was too degraded for a full comparison, isn’t it true that even a partial comparison could potentially have excluded the accused as the source of the semen? And the test you did perform didn’t exclude him, did it? …

    Culminating with a final question something like this:

    In fact, doctor, isn’t it true that not a single piece of evidence you reviewed is in any way inconsistent with the testimony of Doctor Doe, the prosecution expert?

    I want to withhold any endorsement for the questions actually asked and the arguments actually made in this case. Article16’s point, above, about using terms of art that could confuse the members may be valid, but I doubt the QP represents or is meant to represent a verbatim quote

    In general, though: clearly the defense has no obligation to put on any evidence, and clearly it would be wrong to suggest that their failure to do so is itself evidence of the accused’s guilt. Yet when the defense does put on evidence, the prosecution is entitled both to challenge the limits of that evidence, showing that it does not contradict the evidence of guilt advanced by the prosecution, and to argue that the defense evidence in no way supports a reasonable doubt as to the accused’s guilt.

  7. Anonymous says:

    I dont think CAAF would have granted if it were as simple as challenging the defense’s evidence and showing it doesn’t contradict the government’s evidence or doesn’t rise to reasonable doubt.

    Doesn’t mean they won’t ultimately conclude it was harmless or not error, but I would think there must have been something that got at least somewhat close to the line.

  8. Christopher Mathews says:

    Anon 1139, that’s one of the reasons I want to withhold judgment — the devil may well be lurking in the details.

  9. Article16 says:

    I don’t think that line of questioning is objectionable…can’t disagree with anything you’ve said.

    I think it could violate fair play when eliciting testimony on the “failure to find evidence” is beyond the scope of the expert’s review or testimony…and, on argument, to impute that as some kind of flaw in the defense case.
    “You heard yourselves: Dr. Lector, the defense expert, admitted that he failed to find ANY EVIDENCE that would exclude Private Snuffy as the person who committed this crime. Dr. Lector also admitted that he failed to find any evidence that would have suggested someone else committed this crime. But that’s not Dr. Lector’s fault–it just shows that Private Snuffy is the one that did it!”
    Even not using the phrase “exculpatory evidence” it sounds obnoxious.
    If the defense expert’s role in testifying is to attack the weight of the prosecution evidence, the prosecution should keep to that scope.
    Obviously, a defense expert would review previously collected evidence find exculpatory matters or evidence that would suggest others could be responsible, but they don’t normally collect evidence or go beyond opinion testimony that criticizes prosecution evidence. When the defense expert has no exculpatory physical evidence to testify to it shouldn’t impeach the defense expert (who criticizes inadequacies in the collection and analysis of prosecution evidence) and suggest that that kind of evidence could never exist. So it’s a potential problem of scope and emphasis, as I see it.

  10. Tami says:

    CAAF decided a similar issue back in 2004 from an Army case–U.S. v. Mason, 59 M.J. 416. CAAF affirmed.

  11. Tami says:

    Article16,

    One thing to keep in mind when considering this–the defense appellate counsel frames the issue the way defense appellate counsel see it. So just because the question asks whether “trial counsel asked a defense expert if he found any exculpatory evidence” doesn’t necessarily mean that the trial counsel actually asked that. Defense appellate counsel are being advocates for their client, and the best way to be an advocate is to frame the issue in a way that advocates for your client. I’m sure that government appellate counsel will advocate just as strongly for their client.

  12. Article16 says:

    It does seem similar. By affirmed, you mean affirmed after finding error (which they found harmless beyond a reasonable doubt).

    http://www.armfor.uscourts.gov/digest/IB6.htm

  13. Article16 says:

    Yes. Part of my comment had wrongly assumed the prosecutor was throwing around the term “exculpatory evidence.” That’s not necessarily the case.

    Yet even acknowledging a defense appellate counsel frames the issue a certain way, they are obliged to present issues as they are reasonably reflected in the record.

    I don’t have any issues with the government arguing to preserve the conviction…not all argued errors are errors, not all errors are reversible.

  14. Tami says:

    Article16,

    You are correct. ACCA had also issued a published opinion on this case. ACCA also assumed error, and affirmed on this issue based on: (1) the invited error doctrine, and (2) error was harmless beyond a reasonable doubt, given the MJ’s instruction to the panel that the burden doesn’t shift to the accused to prove innocence.