GREGORY CHANDLER SAYS HAPPY NEW YEAR

TO ALL IN 2013.


HAPPY NEW YEAR!!!



GREGORY CHANDLER
ATTORNEY AT LAW

Gregory Chandler--Improper Questioning By Judge

In United States v. Tilghman, 124 F. 3d 414 (D. C. Cir. 1998), The Court reversed a conviction for making false statements on a government form because the judge's repeated questions to the defendant could have telegraphed to the jury that the judge did not believe the defendant.  The case, itself, rested heavily on the defendant's personal credibility. 

It seems to me that the judge wanted to be a player in the litigation rather than an umpire.   


GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER ON EYEWITNESS IDENTIFICATION

An interesting case on the subject of eyewitness identification is
United States v. Smith, 12 F. 3d 1355 (11th Cir. 1997). The Court
affirmed a bank robbery conviction, holding there was no abuse of discretion in excluding expert testimony offered on behalf of the defendant regarding the reliability of eyewitness identifications. 

The Court noted that precedent disfavoring such evidence has not been disturbed since the testimony, although scientific knowledge, does not assist the fact-finder.  This is because the jury is able to determine the reliability of eyewitness identification with the tools of cross-examination.  Furthermore, the defendant was sufficiently protected by instructions highlighting such problems as cross-racial identification, potential bias from earlier identifications, delay between the event and the identification, and stress.


GREGORY CHANDLER, Attorney at Law

MERRY CHRISTMAS FROM GREGORY CHANDLER

TO ALL OF YOU!!!!


MERRY CHRISTMAS




GREGORY CHANDLER

GREGORY CHANDLER--THE TRIAL OF QUEEN CAROLINE

The Trial of Queen Caroline has long fascinated me. 
Those interested in legal history may want to study the trial.  The text of Queen Caroline's trial may be found at 2 Brod. & Bing 284, 129 Eng. Rep. 976 (1820).

In 1820, in the British House of the Lords, Queen Caroline was on trial for the crime of adultery.  King, George IV, had accused Queen Caroline of engaging in adultery with her Italian steward, Bergami, while the Queen was travelling on the continent.  The King sought a divorce.  Public opinion was not entirely on the King's side; he had lived with other women publicly himself, and many individuals felt that he had mistreated Queen Caroline.

Queen Caroline was represented by Henry, Lord Brougham, one of the finest lawyers in the British Empire.  The trial was viewed as the trial of the century because the dignity of the British monarchy might be harmed.  Many feared massive riots and civil war if the masses did not like the verdict.     

Queen Caroline was a rather unattractive woman.  George IV and Queen Caroline had an arranged marriage.  There was never any love between George IV and Queen Caroline. 

George IV decided that he could rid himself of Queen Caroline by charging her with the serious crime of adultery.  George IV used witnesses to the alleged adultery that offered paid testimony.  In addition, two of the five judges sitting on the case were brothers of George IV. 

In my opinion, the Trial of Queen Caroline concerns several trial advocacy issues: (1) the concept of confrontation, (2) the concept of cross-examination to expose questionable testimony, and (3) the 10th Commandment of Cross Examination that one should save the ultimate point for summation.


An Italian livery servant of Queen Caroline named Majocchi was one of the primary witnesses for the George IV.  Majocchi testified that he witnessed the Queen's adulterous behavior during a sea voyage.  Majocchi's direct examination testimony is thus: 

Q:  Did the Princess [Queen Caroline] sleep under the tent [placed on the ship's deck] generally on the voyage from Jaffa home? 

A:  She slept always under the tent during the whole voyage from Jaffa to the time she landed. 

Q:  Did anyone else sleep under the same tent?

A:  Bartolomo Bergami [the Queen's alleged lover].

Q:  Did this take place every night?

A:  Every night. 




Lord Brougham's cross examination exposed Majocchi as an unreliable witness.  Majocchi was questioned about the sleeping arrangements of others on the voyage.  The cross examination was this: 


Q:  During the voyage, where did Hieronimus sleep in general?

A:  I do not recollect.

Q:  Where did Mr. Howman sleep?

A:  I do not recollect. 

Q:  Where did William Austin sleep?

A:  I do not remember.

Q:  Where did Camera sleep?

A:  I do not know. 

Q:  Where did the maids sleep?

A.  I do not know. 

Q:  Did you not, when you were ill during the voyage, sleep below [in the hold] under the deck?

A:  Under the deck.

Q:  Did those excellent sailors always remain below in the hold with you?

A:  This I cannot remember if they slept in the hold during the nighttime or went up.

Q:  Who slept in the place where you used to sleep down below in the hold?

A:  I know very well that I slept there, but I do not remember who else. 

Q:  Where did the livery servants of the suite sleep?

A:  This I do not remember.

Q:  Were you not yourself a livery servant? 

A:  Yes.

Q:  Where did the Padroni of the vessel sleep?

A:  I do not know. 

Q:  When her Royal Highness was going by sea on her voyage from Sicily to Tunis, where did she sleep?

A:  This I cannot remember. 

Q:  When she was afterwards going from Tunis to Constantinople on board the ship, where did Her Royal Highness sleep?

A:  This I do not remember. 

Q:  When she was going from Constantinople to the Holy Land on board the ship, where did she sleep then?

A:  I do not remember.

Q:  Where did Bergami sleep on those three voyages of which you have just been speaking?

A:  This I do not know.




The bulk of Majocchi's cross examination answers, in the Italian language, are:  "Non mi ricordo."  In English this means, "I don't remember." 

After the prosecutors rested, Lord Brougham gave his opening remarks.  I address three advocacy matters that are displayed by the cross examination and summation.   

1.  Confrontation on Cross Examination.

 In his opening remarks, Lord Brougham presents the confrontation of Majocchi with his own statements.  Majocchi's direct examination was quite detailed as to where the Queen slept.  On cross examination, Majocchi had no details as to where anyone other than the Queen slept.

2.  Cross Examination to Expose Questionable Testimony.

The cross examination casts serious doubt on Majocchi's credibility.  Majocchi testifies that he has knowledge of the Queen's sleeping place.  Yet, Majocchi testifies that he has no recollection of where others slept on the ship. 

3.  Save the Ultimate Point of Your Cross Examination for Summation.

On December 9, 2012, I posted a blog titled:  "Gregory Chandler: The 10 Commandments of Cross Examination."  In such blog, I pointed out that a matter can be saved to argue during the trial attorney's summation.  Here, Lord Broughman allows Majocchi to constantly testify on cross examination that he does not recall where persons other than the Queen slept. 

A part of Lord Broughman's summation is this:

"Majocchi answered no categorical questions.  When asked as to the number of sailors present, he would not tell if it was two or twenty-two.  As to place he was equally in fault.  Although he slept in the hold of the ship, he could not tell the others that slept at any time there, by day or by night."


After the government's case was devastated, the prosecution of Queen Caroline ceased. The situation is what I called a settlement based on circumstances. 




GREGORY CHANDLER, Attorney at Law

















 

GREGORY CHANDLER ON CONTINUING OBJECTIONS

Continuing objections are a vexing problem.  I was reviewing a trial record last week in which the trial counsel had made an excellent use of a continuing objection.

Often, a particular line of testimony or other evidence will present the same evidentiary objection that the nonoffering party has previously and unsuccessfully argued to the Court.  In these circumstances, neither the Court nor trial counsel may find it productive to reiterate continuous objections at each point during the trial as if the issue had not been raised before. 

On the other hand, trial counsel must be concerned that a failure to renew an objection down the line could be deemed a waiver.  Therefore, trial counsel should make clear that he or she has a continuing objection, on grounds previously stated, to the entire line of testimony or evidence.  In federal courts, nothing in the Federal Rule of Evidence prevents the use of a continuing objection, and the procedure has been upheld by many Courts.  Of course, a continuing objection is only as good as the original objection; as such, it only preserves the ground of appellate review initially stated by the trial counsel. 

Gregory Chandler, Attorney at Law

Gregory Chandler--Hearsay In Extradition Hearings

In United States v. Kin-Hong, 110 F. 3d 103 (1st Cir. 1997) the Court reversed an order preventing extradition.  The Court opined that the Federal Rules of Evidence are not applicable in extradition proceedings.  The Court, therefore, took the position that hearsay statements accusing the petitioner of bribery were admissible. 

The thought to remember is that the Federal Rules of Evidence do not apply to all federal court proceedings. 

Gregory Chandler, Attorney at Law

GREGORY CHANDLER--THE ART OF THE OBJECTION II

To my readers.



I received a great deal of positive feedback about my writing
from May 2012 titled "The Art of the Objection."

The writing may be read on this blog. 

Thanks,



GREGORY CHANDLER

GREGORY CHANDLER ON AUTHENTICATION OF REAL EVIDENCE

GREGORY CHANDLER, ESQ. 


One of the general requirements of introducing real evidence, including writings, at a trial is that the evidence must be authenticated.  Authentication means that the trial attorney must establish that the real evidence is what it is supposed to be.  Trial attorneys often call this process the laying of a foundation.  In laying a foundation, the trial attorney presents evidence that establishes the evidence as what it is supposed to be.  The authentication of real evidence is expressed in Federal Rule of Evidence 901.   

Federal Rule of Evidence 901(a) reads:


"In general.  To satisfy the requirements of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." 


Rule 901 provides that the proponent must provide evidence sufficient to support a finding that the proffered material is what the proponent says it is.  Under Rule 901, the question of authenticity is generally considered one of conditional relevance--a document or other piece of evidence is not relevant unless it is what the proponent purports it to be. 

As a question of conditional relevance, the admissibility standard appears to be the same as provided by Federal Rule of Evidence 104(b):  Has the proponent offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is?

This is a liberal standard favorable to admitting the evidence.  The drafters of the Federal Rules of Evidence apparently believed that the authenticity should generally be a jury question, subject to the limitation that there is no reason to bother the jury with evidence that clearly is not what the proponent claims it to be.  However, there is no clear showing that Congress adopted a unitary approach to authentication that would deprive the trial judge of the traditional power to scrutinize possibly unreliable or fabricated evidence. 


GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER: THE 10 Commandments of Cross Examination

During the past 20 years, I have attended many lectures given by the National Institute of Trial Advocacy (NITA).  I recall attending a National Session of NITA in Boulder, Colorado and being instructed on Irving Younger's 10 Commandments of Cross Examination. 

A video of Younger's 10 Commandments of Cross Examination from the 1975 NITA National Session remains a major instructional video even today.  I present the 10 Commandments of Cross Examination below with my input.

1.  Be brief.

On cross examination, the goal is to get just a few important points from the witness.  Cross examination is not the point in the trial to build your case.  The cross examiner should get in quick and get out.  A long cross examination will give the witness an opportunity to present an argument against your side. 

2.  Short questions, plain words. 

Novice trial attorneys often violate this commandment of cross examination.  The cross examiner should make the questions short.  The cross examiner should also use plain words and avoid legal jargon.  This is especially important in jury trials. 

3.  Always ask leading questions. 

The cross examiner should control the witness by asking leading questions.  A good leading question gives the witness little or no ability to answer the question in a manner that impairs your side. 

4.  Don't ask a question to which you do not know the answer. 

This again, is a means of witness control.  For example, the cross examiner may ask the question, "Did you ever see Mr. Jones enter the building?"  In this instance, the cross examiner knows that the witness never saw Mr. Jones enter the building in question.  The cross examiner, therefore, knows that the witness cannot properly testify that she or he saw Mr. Jones enter the building in question. 

5. Listen to the witness' questions. 

Cross examiners often ask a question and then focus on the next question.  By paying attention to the witness' question, the cross examiner can ask the better question. 

6.  Don't quarrel with the witness. 

The cross examiner must understand that the witness on cross examination is, to some degree, either neutral or adverse.  If the cross examiner quarrels with the witness, witness control is often lost.  In addition, many jurors do not like to see attorneys quarrel with a witness. 

7.  Don't allow the witness to repeat his direct testimony. 

In most instances the direct testimony favors the other side.  Therefore, it is not advantageous to allow the witness to repeat the direct testimony.  Nonetheless, there is sometimes a reason to violate this commandment of cross examination.  When the direct testimony favors the cross examiner, it is sometimes good to let the witness repeat the direct testimony.

8.  Don't permit the witness to explain his answers. 

This commandment is part of witness control.  Again, this commandment may be violated when the cross examiner knows that there is no favorable way for the witness to explain the answer. 

9.  Don't ask the "one question too many."

This commandment is linked with the next commandment about saving something for summation. This commandment is also key in witness control. 

10.  Save the ultimate point of your cross for summation.    

The summation is the part of the trial when the trial attorney gets to argue the case.  Summation is called closing argument in many jurisdictions.  By saving the ultimate point for summation, the trial attorney is allowed to present the ultimate point in a manner that cannot be attacked by additional witnesses or evidence.  


Above, are Irving Younger's 10 Commandments of Cross Examination with my input.  A key theme of the 10 Commandments of Cross Examination is witness control.  The ultimate goal of the trial litigator is presenting the best case. 



GREGORY CHANDLER, Attorney at Law  

GREGORY CHANDLER -- BUSINESS RECORDS

I plan to do another writing on business records soon.

Gregory Chandler

GREGORY CHANDLER: THE BEST--AND NOTHING BUT THE BEST--EVIDENCE

BY GREGORY CHANDLER, ESQ.


While teaching a seminar on the rules of evidence, I became aware of the fact that many attorneys do not understand the concept known as the Best Evidence Rule.  In the Federal Rules of Evidence, the Best Evidence Rule is expressed in Federal Rule of Evidence 1002, Requirement of the Original.  Most states have a rule of evidence similar to Federal Rule of Evidence 1002. 

Federal Rule of Evidence 1002 (Rule 1002) reads:

 An original writing, recording, or photograph is required in       order to prove its contents unless these rules or federal statute provides otherwise. 

The Best Evidence Rule requires the production of an original in order to prove the contents of a writing, recording, or photograph, unless an exception is provided in another Rule.  The traditional rationale for the Best Evidence Rule--that accuracy is promoted by production of the original, because the process of copying creates risk of fraud, mistake, or error--has been reduced somewhat by technological advances with respect to copying of writings and recordings.  The Federal Rules take account of these developments by establishing broad exceptions to Rule 1002.  Rule 1002 must be read together with the exceptions provided in Rules 1003 and 1004.  The only legitimate concern remaining is where the proponent seeks to prove the content of a writing or recording by way of oral testimony or handwritten replication, i. e., where there is no duplicate of the final document. 

The one difficult concept that arises in connection with Rule 1002 is the notion of proving the contents of a writing, recording, or photograph.  If the contents are not sought to be proved, the Best Evidence Rule is inapplicable, and the proponent can prove the fact in any otherwise permissible way. The fact that a writing is made to describe or record an event or a condition does not prevent testimony by knowledgeable witnesses as to the same event or condition, if it is the event or condition to be proved and not the contents of the document itself. 

One familiar example relates to the question whether one individual paid another individual a certain sum of money at a specified time.  The first individual may have given the second individual a written receipt, but that does not prevent oral testimony concerning the alleged payment.  The proponent is trying to prove whether or not a payment is made, not the content of any agreement. 

However, should the first individual choose to prove the fact of payment by using the receipt, Rule 1002 requires that the original or a duplicate of the receipt be introduced, or its absence explained, because in that case the content of the receipt (i. e., the amount, date, signature, etc.) is the point to be proven.  The same can be said of the use of most photographs, a point made by the Advisory Committee of the Federal Rules of Evidence.  Ordinarily, a witness takes the stand and states that a photograph represents the scene as she or he saw it.  The contents of the photograph are not then in issue; the scene is in dispute.  Therefore, Rule 1002 seldom applies to ordinary photographs.  However, in an obscenity prosecution or copyright case, the contents might be in dispute.  The contents of a photograph would also be in dispute if the proponent merely took a photograph of documents and offered the photograph to prove the contents of the documents. 

The most common example of non-applicability of the Best Evidence Rule in criminal cases is police officer testimony as to the contents of a confession.  Police officers who heard a defendant confess may testify to what they heard even if there is a recording of the confession and a transcript of that recording.  Only when the recording or transcript is actually offered, as proof of the content therein, is the Best Evidence Rule triggered. 

One example of an application of the Best Evidence Rule arose in United States v. Bennett, 363 F. 3d 947 (9th Cir. 2004).  The United States Coast Guard found substantial amounts of marijuana on the defendant's boat, and the major contested issue was whether defendant was importing the marijuana from Mexico.  The federal prosecutors did not have eyewitness testimony that the boat crossed into United States waters from Mexican waters.  The federal prosecutors relied at trial chiefly on the testimony of a customs officer that he found a global positioning system (GPS) on the defendant's boat and that the GPS revealed that the boat had traveled from Mexican waters to the bay of San Diego, California. 

A GPS device uses global positioning satellites to track and record the location of the device, and thus the location of any object to which it is attached.  The GPS device in question came with the capabilities to graph the boat's journey the day of the search.  The customs officer testified at trial that the GPS mapped the defendant's journey from Mexican territorial waters and then north to San Diego Bay.  The customs officer admitted on cross-examination that he had not taken possession of the GPS device itself nor had he obtained any printout record of the date contained in it.  Rather, he simply used the GPS device and viewed the graphic display, which indicated where the boat had been.  The court found the testimony about the GPS information to be a best evidence violation for three reasons.  First, the GPS display the customs officer saw was a writing or recording.  Second, the customs officer never actually observed the defendant's boat travel the path depicted by the GPS.  Third, the customs officer did not observe anyone entering way points into the machine.  Thus, the witness' testimony concerned the content of the GPS to prove the defendant's travels.  The federal prosecutors did not produce the GPS itself, in which the GPS could be employed in court; nor did it produce a printout of the GPS data.  Either of these sources would have been the best evidence of the boat's travels; as a result, testimony did not satisfy the Best Evidence Rule.  Finally, the government provided no excuse for relying on the witness' testimony instead of the GPS or a printout. 


GREGORY CHANDLER, Attorney at Law       










                  

GREGORY CHANDLER - COURT MARTIAL OF DAVID PETRAEUS

One little discussed aspect of the David Petraeus extramarital affair is that adultery is a criminal offense in the United States military.  Article 134 of the Uniform Code of Military Justice allows for the court-martial of United States military personnel for adultery. 

The facts, as reported, inform that the retired general engaged in an extramarital affair while on active duty.  Therefore, Petraeus can be recalled to active duty for the purpose of a court-martial.  In addition, administrative penalties may be imposed such as a letter of reprimand.  As a retired service member, Petraeus is currently still in the military with the status of an individual who is on what is known as the retired list. 


Gregory Chandler 

GREGORY CHANDLER -- ELECTION ATTORNEYS ?

It is reported that the Obama and Romney campaigns sent large numbers of election attorneys to battleground states earlier this week to monitor voting activity.

Given the divide between the two major political parties, a new practice field may emerge.  That field is election attorneys.  No word yet if the practice area is viable in years without a presidential election.


GREGORY CHANDLER, Attorney at Law

COLONEL GREGORY CHANDLER--MILITARY POLITICAL ACTIVITY

The 2012 general presidential election is approaching fast.  Military members, both active and reserve, must remember the proper role that servicemembers can have in politics. 

The rules against political activity are designed to ensure that the Department of Defense is viewed as being involved in politics.  Military members must follow the commands of the civilian leadership regardless to the military member's political views.  Violation of these rules can have serious consequences.

As a servicemember, one should be familiar with what one can and cannot do regarding political activities.  Below is an outline of the basic rules.

As a servicemember, you may:

Register, vote

GREGORY CHANDLER --MILITARY & FAMILY LIFE CONSULTANT PROGRAM

Military & Family Life Consultant Program (MFLC) is a family assistance program that serves
all branches of the U. S. military.  Guard and Reserve components of the military services are also included. 

The MFLC can assist with non-medical counseling services such as:

• Communication
• Relationship issues
• Productivity at work
• Conflict resolution
• Parenting
• Decision making skills
• Anger management

In addition, MFLC can assist with military lifestyle issues such as:

• Deployment stress
• Coping skills
• Relocation adjustment
• Sadness, grief and loss
• Homesickness
• Family separation
• Transition from the military to civilian life

Most military installations have an MFLC office.  Individuals can contact these offices for assistance. 


GREGORY CHANDLER, Attorney at Law

COLONEL GREGORY CHANDLER--HAPPY BIRTHDAY AIR FORCE

September 17, 2012 marks the 65th birthday of the United States Air Force. 

Happy Birthday to the Air Force!


COL Gregory Chandler, USAR

COLONEL GREGORY CHANDLER--MILITARY VOTING

The 2012 presidential election season is in high gear.  To that end, I inform about the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). 

UOCAVA covers all military personnel and their dependents, and all United States citizens living outside the United States of America.  Under UOCAVA, you register to vote using a Federal Post Card Application Standard Form 76.  This form is commonly called the FPCA form. FPCA forms are available at all United States military installations around the world and at all United States embassy and consulate locations.  You can also download a FPCA form from the Federal Voting Assistance Program website, www.fvap.gov. 


GREGORY CHANDLER, Colonel, USAR

Gregory Chandler on Business Records

In business litigation, the issue is often the admissibility of business records.  Under the Federal Rules of Evidence the controlling rule is Rule 803(6).  Rule 803(6) concerns regularly conducted activity. 

I came across an interesting case today.  The case is United States v. Lemire, 720 F. 2d 1327 (D. C. Cir. 1983).  The appellate court affirmed convictions for wire fraud and other offenses.  The court upheld the exclusion of a memorandum written by one defendant for a superior, finding that the document was not a business record, because it was not made in the regular practice of the business and it summarized events that had taken place some time before. 

GREGORY CHANDLER, Attorney at Law

Gregory Chandler -- Ponzi Scheme Litigation

I researched this case last week while preparing a brief.  The case is Scholes v. Lehmann, 56 F. 3d 750 (7th Cir. 1995)  The Seventh Circuit affirmed, in part, a summary judgment for the plaintiff in a receiver's action to recover funds that had been distributed by the since-convicted mastermind of a Ponzi scheme.  The Court opined that the mastermind's plea agreement was admissible under Federal Rule of Evidence 803(22) to establish the defendant's liability. 

Gregory Chandler, Attorney at Law

Gregory Chandler-Special Needs Trusts

In 1993, Special Needs Trusts were given a special "exception" status for Medicaid purposes under 42 U. S. C. section 1396(d)(4)(A)-(C).  Funds held in these types of trusts are not considered available to the trust beneficiary in determining whether or not the individual qualifies for Medicaid, provided that the Trust meets a few conditions:  the Trust must be for the sole benefit of a person with a severe and chronic or persistent disability; the Trust assets can only be used to supplement, and not supplant or replace goods and services available to the Beneficiary through government benefits programs; and if the Trust at the Beneficiary's death is subject to recovery by the state (up to the total amount that was paid by Medicaid on health care for the Beneficiary).

A first-party Supplemental Needs Trust (SNT) is one in which the Beneficiary's own assets are used to create the Trust.  This type of Trust will be appropriate when the Beneficiary has received a settlement, inheritance, or other windfall that would disqualify him or her from need-based government benefits.  The funds in a SNT will not impact an individual's eligibility for government benefits when:  (1) the Trust Beneficiary is a person with a severe and chronic or persistent disability and is under the age of 65; (2) the Trust was established by a parent, legal guardian, grandparent, or court of competent jurisdiction; (3) the fund's use is limited to goods and services not otherwise available through government benefits; and (4) the state will receive all amounts remaining in the Trust upon the Beneficiary's death, up to the amount that was paid out by Medicaid on his or her behalf.  42 U.S. C. section 1396p(d)(4)(A)

Like a Supplemental Needs Trust, a Pooled Trust is created for a severely and chronically or persistently disabled individual's sole benefit, but the Trust assets are managed by a non-profit organization and pooled with other accounts for administrative and investment purposes.  Pooled Trusts have no age limitations but Medicaid applicants and recipients who require a nursing home level of care may incur a period of ineligibility for any assets placed in the Trust after turning age 65.  At the death of the disabled individual, any funds remaining in the Trust not used to reimburse the state for Medicaid paid on behalf of the deceased, remain in the pool for the benefit of others with
disabilities.  42 U. S. C. section 1396p(d)(4)(C)

Under the federal Social Security Act, there is one other type of special needs trust but it is only available in states whose Medicaid program does not provide Medicaid solely on the basis of medical need.  These types of trusts are called Medicaid Qualified Income Trusts.  Medicaid Qualified Income Trusts are also known as Income Cap or Miller Trusts.  In those states in which Medicaid Qualified Income Trusts are permitted, the Trust, composed of a disabled's person's monthly pension, social security, and other income makes it possible for the individual to qualify for nursing home care under Medicaid even though the person's income exceeds Medicaid eligibility limits.  42 U. S. C. section 1396p(d)(4)(B).

It should be noted, however, that about half of the states do not recognize Medicaid Qualified Income Trusts. 

GREGORY CHANDLER, Attorney at Law     

COLONEL GREGORY CHANDLER--Military Spouse Career Advancement Accounts

The Department of Defense reopened the Military Spouse Career Advancement Accounts (MyCAA) recently with several key changes in eligibility and dollar amounts. 

Below is a summary of the changes:

1.  MyCAA is available to spouses of active duty service members in pay grades E1 to E5, W1-W2, and O1-O2.  The spouses of activated Guard and Reserve members within those ranks are also able to use the MyCAA.  Spouses of Guard and Reserve members must be able to start and complete their courses while their sponsor in on Title 10 orders.

2.  MyCAA offers a maximum financial benefit of $4,000 with a fiscal year cap of $2,000.  Waivers will be available for spouses pursing licensure or certification up to the total maximum assistance of $4,000.

3.  MyCAA requires military spouses to finish the spouse's program of study within three years from the start date of the first course. 

4.  The MyCAA is limited to associate degrees, certification and licensures. 

The MyCAA program provides up to $4,000 (over 2 years) of financial assistance for military spouses who are pursuing degree programs, licenses, or credentials leading to employment in portable career fields.


GREGORY CHANDLER, Colonel, US Army Reserve

GREGORY CHANDLER--FIREARMS LITIGATION

A convergence happened last week.  I heard a news broadcast about the mass shootings in Aurora, Colorado while doing some legal research on the Second Amendment.  While researching, I came across an intersting case.   

In U. S. v. Huet, 2012 WL 19378 the Court held that an indictment for aiding and abetting the possession of a firearm by a convicted felon did not violate the Second Amendment right to bear firearms.  The defendant was legally entitled to own the firearm at issue but she lived with a felon.  The indictment did not allege that the defendant's possession of the firearm in her home violated the law.  Additionally, the defendant's right to keep the firearm in her home did not give her the right to facilitate a felon's possession of the firearm.   

The gist of the case is that one's legal conduct may still result in some other crime based on the circumstances. 


GREGORY CHANDLER, Attorney at Law

Gregory Chandler - Happy Independence Day

I wish all readers a Happy Independence Day.


GREGORY CHANDLER

Gregory Chandler - Present Sense Impression?

Oh that tricky evidentiary concept known as Present Sense Impression. In the Federal Rules of Evidence, the Present Sense Impression is stated in Federal Rule of Evidence 803(3).  I will  discuss some cases on this topic soon.

Gregory Chandler, Attorney at Law

Gregory Chandler - Supreme Court This Week

The Supreme Court has ruled 5-4 to uphold what many people call "Obamacare." 


It seems that many against the act are crying foul.  The case does show, however, that in most cases the laws passed by Congress and signed by the President should not be disturbed without good reason.


Gregory Chandler, Attorney at Law

Gregory Chandler - Roger

Gregory Chandler -- John Edwards Trial

I have blogged often about the waste of time and money
going after Roger Clemons. 

In the meantime, the federal government has wasted time
and money going after John Edwards. 

The only question is if the prosecutors at issue are rouges
are just foolish.  Let us hope that federal prosecutors focus 
time and money on useful matters.   

GREGORY CHANDLER, Attorney at Law

Gregory Chandler -- Best Evidence Rule Writings

I am interested in writings on the topic of the Best Evidence Rule
before the Federal Rules of Evidence became codified.

Anyone with such writings, please contact me.

Gregory Chandler, Attorney at Law 

Gregory Chandler - Memorial Day Greetings

On this Memorial Day weekend, I wish all military personnel and military veterans a good holiday.

Thank you. 

Gregory Chandler, Attorney at Law
Colonel, USAR 

Gregory Chandler - Voice Identification

In litigation, one need not be an expert to testify to matters that are of personal knowledge. One example is shown in United States v. Bush, 405 F.3d 909 (10th Cir. 2005).  The defendant, convicted of cocaine distribution, argued that it was error to allow the undercover officer to testify as a lay witness that it was the defendant's voice in an incriminating conversation that was surreptitiously recorded and played at trial. 

The appellate court affirmed, finding no error in admitting the voice identification testimony under Federal Rule of Evidence 701.  The undercover officer had sufficient familiarity with the defendant's voice from speaking to him in person and numerous times over the telephone.  Moreover, the testimony was helpful to the jury, since the defendant exercised his right not to testify and the jury never heard his voice. 

The 10th Circuit's reasoning is sound on the issue of a lay witness being able to testify about an individual's voice based on personal knowledge.  I must question, however, the court's comment about the defendant exercising his right not to testify because such a position injures a defendant's right not to testify at trial.  The 10th Circuit is clearly wrong in even raising the fact that the defendant invoked his right not to testify against himself.  As to this case, the 10th Circuit needs to take a continuing legal education course on the invocation of privileges. 

GREGORY CHANDLER, Attorney at Law      

GREGORY CHANDLER - The Art of the Objection

I lectured a group of United States Marine Corps recruits last year and showed some clips from the military court-martial movie, A Few Good Men.  My goal was to teach matters such as only obeying lawful orders.  As viewers of the movie may recall, two young Marines had been given an order to train another Marine.  Unfortunately, the training took the form of physical harassment and the Marine that received the training died.

I saw A Few Good Men on television recently, and I noticed a scene from the film that is helpful for trial attorneys. My recent viewing of the movie recalls a class I had at the national session of the  National Institute of Trial Advocacy in 1994.  In 1994, the movie A Few Good Men was less than two years old.   

Anyway, there is a scene in which a Marine prosecutor calls a United States Navy medical doctor to the stand to testify about the dead Marine.  The Navy doctor gave the deceased a medical checkup.  In addition, the Marine prosecutor offers the Navy doctor to the proceedings as an expert medical witness. 

The Navy Judge Advocate General (JAG) attorney, played by Tom Cruise, objects to the Navy medical doctor being presented as an expert witness.  In the view of the JAG defense attorney played by Cruise, the Navy medical doctor, an internal medicine doctor, did not have the required expertise to testify as an expert witness as to cause and manner of death. 

The military judge overrules the objection.  It appears that the objecting attorney expected the objection to be overruled.  As so often happens in trial litigation, an objection is helpful whether the objector wins or loses.  For example, even if the objection is lost, the objection is preserved for appeal.  In addition, an objection, may win points with the fact-finder. 

Whatever the reason for the objection, the defense suffers a blow because of an unfortunate move by a member of the defense team played by Demi Moore.  The JAG attorney played by Moore jumps up and makes a frantic statement that the defense "strenuously objects," and lectures the military judge that accepting the Navy internal medicine doctor as an expert is unfairly prejudicial to the Marines on trial. 

The angry military judge restrains himself and lectures the defense team that the Navy internal medicine doctor is indeed an expert witness and that the Court will accept his opinion.  The fact that the judge shouts that the internal medicine doctor is an expert witness is damaging to the defendants' case. 

The exchange between the defense team and the military judge highlights the fact that making trial objections is both an art and a science.  An objection is not made for the mere purpose of winning an objection.  Rather, an objection is made for the purpose of winning the case.  A good objection advances the goal of winning the case regardless of whether the objection is sustained or overruled. 

Unfortunately, many trial attorneys do not fully understand the art of the objection.  A good
litigator--trial or appellate--takes steps to advance the case even if such step is not successful.

For example, a litigator will often seek to discover medical documents showing a serious injury with the full knowledge that the alleged injured party has no serious injury and, therefore, cannot produce documents showing a serious injury.  An objection by the attorney for the alleged injured party is of little consequence because the asking party knows that the documents requested do not exist. 

With that in mind, we can now go back to the objection in A Few Good Men about the internal medicine doctor being held as an expert medical witness.   It appears that the reason for the objection to the doctor being viewed as an expert medical witness is not for preventing the internal medicine doctor from testifying as an expert witness.  Instead, the purpose of the objection--in front of the court-martial panel--was to cast doubt on the internal medicine doctor's testimony and boost the defense case. 

If the defense presents its own expert witness, the defense expert witness can be presented as more credible than the prosecution's expert witness.  In addition, in closing argument, the defense can argue that the prosecution witness is simply weak.  All seasoned trial litigators know that some points are saved for the closing argument. 

Finally, remember that there is an art in objecting. The reason for the objection is to help one's case without regards to actually winning the objection. 


GREGORY CHANDLER, Attorney at Law
Colonel, United States Army Reserve         
 

GREGORY CHANDLER-ADMISSION OF INCOMPLETE RECORDS

Typically, the admission of business records requires that the
business records be complete.  However, there are cases that
address the admission of incomplete business records. One such
case is United States v. Foster, 711 F. 2d 871 (9th Cir. 1983).  Here, the appellate court held that a ledger listing drug transactions was properly admitted even though it was incomplete, had several pages missing, and contained entries made out of sequence, since the entries actually made were made regularly and at or near the time of events. 

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER - REASONS FOR MEDICAL TESTIMONY HEARSAY EXCEPTION

THE RATIONALE FOR FEDERAL RULE
OF EVIDENCE 803(4)

Typically, statements made to a medical provider for medical treatment or medical diagnosis are viewed as hearsay exceptions.  In the Federal Rules of Evidence, this hearsay exception is stated in Rule 803(4).  Most state rules of evidence have a similar hearsay exception. 

Federal Rule 803(4) and the similar state rule, are based on two independent rationales that are thought to guarantee trustworthiness. 

First, an individual has a motive in providing truthful information in order to be correctly treated or diagnosed.  If the individual gives false information to medical personnel, the individual will be acting at his or her own peril.

Second, a statement is reliable if reasonable medical providers would rely upon it as a basis for medical diagnosis or medical treatment.  Thus, if the statement is "pertinent" to medical diagnosis or medical treatment, as Rule 803(4) requires, it is the type of statement upon which medical personnel would rely; if it is reliable enough for medical purposes, it is reliable enough for litigation matters.  

Most courts subject statements proffered under Rule 803(4) to a two-part reliability test.  First, the declarant must have a motive consistent with obtaining medical care or a medical diagnosis, or at least have the awareness that truthfulness is required to further such care.  Second, the content of the statement must be such as is reasonably relied upon by medical personnel for medical treatment or diagnosis.  This two-pronged test reflects the policy justification that support Rule 803(4), and it is consistent with the language of Rule 803(4).        


My view is that modifications should be made to Rule 803(4).  The rule is a product of the pre-1970s thinking.  Today, individuals are more skilled at tactics such as what is sometimes known as "doctor shopping."  Such individuals know how to tailor their statements to medical personnel in order to acquire unnecessary drug prescriptions and unneeded medical care.  Sometimes, an individual is coached to make statements to advance a litigation position.    

In essence, rule-makers should update and modify Rule 803(4) and similar state rules to make the rules more relevant in the 21st century. 


GREGORY CHANDLER, Attorney at Law 

GREGORY CHANDLER - LITIGATION OF FORGERY ALLEGATIONS

I have been involved in litigation in which a party alleges forgery.  Having studied at the FBI crime laboratory, I am also familiar with handwriting analysis.  In researching a case, I came across United States v. Garcia, 448 F. 3d 294 (5th Cir. 2006).  In this case, the Fifth Circuit affirmed drug convictions.  The court found no abuse of discretion in the exclusion of testimony by the defendant's handwriting expert that signatures on the defendant's confession and consent to search form were forged. 

Although the handwriting expert's opinion was based on the examination of photocopied documents, the expert stated that she did not know how many times the documents had been photocopied and admitted that the best practice is to look at original signatures and not photocopies. 

GREGORY CHANDLER, Attorney at Law 

GREGORY CHANDLER - EXCLUSION OF EXPERT WITNESSES

Often, during a jury trial, the issue of the exclusion of expert witnesses arises.  The exclusion of an expert witness is the issue in United States v. Olofson, 563 F. 3d 652 (7th Cir. 2009).  The appellate court affirmed a conviction for illegally transferring a machine gun, finding no abuse of discretion when the defendant's firearm expert was excluded from the courtroom during the testimony of the federal government's expert. 

The Seventh Circuit rejected the argument that merely because Federal Rule of Evidence 703 contemplates that an expert may render an opinion based on facts or data made known at trial necessarily means that an expert is exempt from a Federal Rule of Evidence 615 sequestration order.

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER - INSURANCE FRAUD

While preparing a brief last week, I came across an interesting case involving insurance fraud.  In United States v. Danford, 435 F.3d 682 (7th Cir. 2005) the defendant was convicted of insurance fraud after staging a fake robbery of his jewelry store.  At his trial, one of the employees testified to a statement made by the store manager, indicating that the defendant had asked the manager how to disarm the store alarm.  The store manager's statement was made well before the robbery occurred. 

Rejecting the argument that the store manager's statement was testimonial the Court stated that "the conversation between [the witness] and the store manager is more akin to a casual remark. 

Accordingly, the Seventh Circuit held that the district court did not err in admitting testimony under Federal Rule of Evidence 803(1), the present-sense impression exception to the hearsay rule. 

GREGORY CHANDLER, Attorney at Law 

Gregory Chandler - Cinco De Mayo

   A good Cinco De Mayo to all.

Gregory Chandler, Attorney at Law

Gregory Chandler - Authentication by Circumstances

At times, a party's own behavior or circumstances act to authenticate evidence in litigation.  An example is United States v. Fraser, 448 F. 3d 833 (6th Cir. 2006).  In the trial court the defendant was
charged in a check fraud scheme.  The prosecution introduced a book, written by the defendant, that detailed a check fraud scheme that was virtually identical to the conduct the defendant was charged with. 

The Sixth Circuit affirmed and held that the book was sufficiently authenticated as the defendant's by his reference to it on his website, his picture on the book's cover, and his name as the author.


GREGORY CHANDLER, Attorney at Law

Gregory Chandler - Authentication of Telephone Calls

The authentication of telephone calls is often a problem in litigation.  In United States v. Portsmouth Paving Corp., 694 F. 2d 312
(4th Cir. 1982) the Fourth Circuit held that a telephone
conversation was properly authenticated under Rule 901(b) (6) by evidence that a call had been placed to a defendant's office.

GREGORY CHANDLER, Attorney at Law

Gregory Chandler - Medicare Set-Asides

All parties in a workers compensation case have significant responsibilities under the Medicare Secondary Payer (MSP) laws to protect Medicare's interests when resolving workers compensation cases that include future medical expenses. The recommended method to protect Medicare's interests is a Workers' Compensation Medicare Set-aside Arrangement (WCMSA), which allocates a portion of the workers compensation settlement for future medical expenses. The amount of the set aside is determined on a case-by-case basis.

GREGORY CHANDLER, Attorney at Law

Gregory Chandler - Federal Tort Claims Act

I have handled many cases under the Federal Tort Claims Act. The Federal Tort Claims Act (FTCA) is in the statutory law as 28 U. S. C. section 1346(b).

The FTCA allows individuals to sue the United States government in the federal courts for injuries and harms committed by persons acting on behalf of the United States. The FTCA, therefore, acts a as waiver of the federal government's immunity.

Under the FTCA, the government can only be sued under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. In addition, the FTCA does not apply to conduct that is uniquely governmental. In other words, conduct that a private individual is incapable of performing.

28 U. S. C. section 2608(h) provides that the federal government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contractual rights. However, the statute does provide exceptions.

The federal government is liable if a federal law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The federal government is not liable if the claim against federal law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract.

Congress has not waived the federal government's sovereign against federal law enforcement for acts or omissions.

Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the federal government, whether or not the discretion involved be abused. (28 U. S. C. section 2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test as established in Berkovitz v. United States, 486 U. S. 531, 536 (1988). First, the question must be asked whether the conduct involved an element of judgment or choice. United States v. Gaubert, 499 U. S. 315, 322 (1991). This requirement is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. See, Berkovitz, 486 U. S. at 536. Once the element of judgment is established, the next inquiry must be whether that judgment is of the kind that the discretionary function exception was designed to shield in that it involves consideration of social economic, and political policy. See, Gaubert, 499 U. S. at 322-23.

Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e. g. Flynn v. U. S. 902 F. 2d 1524 (10th Circuit 1990) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary."

The FTCA specifies that the liability of the U. S. is to be determined in accordance with the law of the place where the allegedly tortious act or omission occurred. 28 U. S. C. section 1346(b). In an action under the FTCA, a court must apply the law the states courts would apply in the analogous tort action, including federal law. See, Caban v. U. S., 728 F. 2d 68, 72 (2d Cir. 1984); see also Richards v. U. S., 369 U. S. 1, 11-13 (1962)

An individual cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See, FDIC v. Meyer, 114 S. Ct. 996, 1001 (1994).

The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that upon certification by the Attorney General that the defendant employee was acting within the scope of his or her office or employment at the time of the incident out of which the claim arose...the United States shall be substituted as the party defendant. 28 U. S. C. section 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and...instead provide that the exclusive remedy for such torts is through an action against the United States under FTCA.

Under the FTCA, the U. S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See, U. S. v. Orleans, 425 U. S. 807, 814-15 (1976); Letnes v. U. S., 830 F. 2d 1517, 1519 (9th Cir. 1987)

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER--JUDGE ADVOCATE ROLE IN COMMAND DECISIONS

There are pressing issues in the United States military concerning the role of Judge Advocate General (JAG) officers in command decisions.

The role of a JAG officer is to give advice to the commanding officer. A second role is the interpretation of the laws that impact command decisions.

Many commanders, perhaps correctly, complain that JAG officers are making command decisions. While the JAG officers are charged with giving legal advice, the JAG officers should not be the individual or individuals who make command decisions.

In my opinion, both commanders and JAG officers, must know the proper role of who is the
commander and who is the legal advisor.

GREGORY CHANDLER, Attorney at Law
Colonel, USAR

GREGORY CHANDLER - IMMIGRATION STATUS GIVES CRIMINAL STATUS

A person who has ever lived in the United States as an illegal immigrant may have his or her current or former illegal immigration status used against him or her to show that the individual has committed a crime.

In United States v. Lopez-Medina, 596 F. 3d 716 (10th Cir. 2010), the Tenth Circuit affirmed a conviction for possession of methamphetamine with intent to distribute, holding there was no abuse of discretion when the government elicited on cross-examination of the defendant that he had lived illegally in the United States for over 13 years. The evidence of being a current or former illegal immigrant was relevant to rebut efforts on direct examination to portray the defendant as a law-abiding person who has never committed a crime.

GREGORY CHANDLER, Attorney at Law

Gregory Chandler-Sham Immigration Marriages

One crime that is under prosecuted is the offense of sham immigration marriage. One reason is that the United States government lacks the resources to investigate and prosecute this crime.

One instance in which the defendants did not avoid criminal prosecution is United States v. Thiongo, 344 F. 3d 55 (1st Cir. 2003). In the appeal the First Circuit affirmed convictions arising from a conspiracy to gain illegal admission into the United States for Kenyan nationals, holding there was no abuse of discretion in permitting the prosecutor to ask the defendant on cross-examination whether she served as a legal witness to a sham marriage (between her current husband and another woman) designed to avoid immigration laws. The Court found that willingness to do so "is fairly probative of Defendant's truthfulness."

GREGORY CHANDLER, Attorney at Law

Gregory Chandler - Habeas Corpus Litigation

I studied an interesting case last week while working on a habeas corpus case. The case is Helmig v. Kemna, 461 F. 3d 960 (8th Cir. 2006). In Helmig, a man convicted in state court for murder argued that his conviction should be vacated because the jurors requested, obtained, and consulted a highway map that was not admitted into evidence.

The Eighth Circuit affirmed the dismissal of the habeas corpus petition, the Court noted that in order to be able to proffer testimony from the jurors, the petitioner had to prove that the highway map evidence was both extraneous and prejudicial.

The Court noted that the petitioner failed to prove that the map was extraneous. He provided no evidence that the highway map was conveyed to the jury from an outside source. Furthermore, the petitioner did not attempt to refute testimony that everything given to the jury had been approved by the trial judge.

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER-HAPPY NEW YEAR

Happy New Year!!!!


GREGORY CHANDLER, Attorney at Law