State v. Bolden

THE INAPPROPRIATE ADMISSION OF A NONAUTHENTICATED VIDEO, FOLLOWED BY THE INAPPROPRIATE TESTIMONY AND ARGUMENT ABOUT THAT VIDEO, NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.

A. The Video Was Not Authenticated And Therefore Was Inadmissible.

B. The Comments On The Video Were Inadmissible And Unduly Prejudicial.

C. Johnson's Testimony About The Video Was Inadmissible Hearsay And Speculation.

D. The State Misrepresented The Limited Evidence Presented About The Video In Closing and Engaged in Improper Speculation.

​E. Individually Or Cumulatively, The Video Evidence Errors Require Reversal Of [Defendant]'s Convictions. 

THE ADMISSION OF PORTIONS OF THE INTERROGATION IN WHICH OFFICERS OPINE ON DEFENDANT'S GUILT AND RELAY HEARSAY, AS WELL AS THE PORTION IN WHICH DEFENDANT INVOKED HIS RIGHT TO COUNSEL, DEPRIVED DEFENDANT OF A FAIR TRIAL.

A. Failure To Redact The Officers' Inappropriate Lay Opinions And Hearsay From The Interrogation Necessitates Reversal Of Defendant's Convictions.

B. The Failure To Redact Defendant's Invocation Of His Right To Counsel And The Misuse Of That Invocation In Closing Necessitates Reversal Of Defendant's Convictions. [(Not Raised Below).]

​C. The Failure To Properly Redact The Interrogation Footage Requires Reversal Of Defendant's Convictions. 

Defendant maintains the failure to redact the following categories of the detectives' commentary [in the recorded interrogation] requires reversal of his convictions: (1) stating with certainty that the car depicted in the surveillance video was defendant's vehicle; (2) expressing skepticism that defendant was truthful during the interview; (3) opining a jury would convict defendant based on his denial of guilt; and (4) reiterating hearsay that many people spoke with police about the fight video. Defendant claims the detectives' statements constituted inadmissible hearsay or lay opinion. For the first time on appeal, defendant further argues the failure to redact his invocation of the right to counsel and the prosecutor's comments on that right warrant reversal of his convictions. 
​. . . . 
Slip op. 19-22.

​In summary, although the disputed statements may be viewed as proper interrogation techniques, they are not proper statements for presentation to the jury in an unredacted statement. We therefore conclude the disputed statements were lay opinions interpreting the evidence, a function solely entrusted to the jury.
. . .
​Even if the failure to redact defendant's invocation of counsel and the prosecutor's comments in summation did not rise to plain error, those errors combined with the failure to redact the detectives' lay opinion were capable of producing an unjust result, warranting reversal of defendant's convictions. 

Every year, federal judges sentence tens of thousands of criminal defendants to carceral terms. Although Congress requires sentences to be “sufficient, but not greater than necessary,” sentencing judges often rely, at least in part, on untested facts – facts that are not subject to the rigors of the adversarial process – because federal courts do not apply the Sixth Amendment’s Confrontation Clause protections at sentencing. Accordingly, prosecutors adduce evidence at sentencing which has neither been confronted nor admitted to support the Government’s sentencing recommendation. This practice raises serious constitutional concerns because it ignores both the original understanding of the Confrontation Clause and Supreme Court authority. Neither a federal statute (like 18 U.S.C. § 3553(a)) nor the United States Sentencing Commission’s Guidelines can authorize (or excuse) a Sixth Amendment violation. A detailed historical review of the Confrontation Clause and related Supreme Court precedent confirms that the prevalent use of uncharged and dismissed conduct to enhance a sentence violates the Sixth Amendment’s Confrontation Clause. As a result, 18 U.S.C. § 3553 and 18 U.S.C. § 3661 are unconstitutional to the extent that they conflict with the Sixth Amendment, and sentencing judges should decline to consider uncharged or dismissed conduct not subject to the protections the Sixth Amendment provides.

In modern criminal prosecutions, the determination of guilt is often little more than a formality. It sets the stage for the main event: sentencing. Sentencing, however, is driven by facts about both the offense and the offender. Years of imprisonment may hinge on those facts, making it imperative to determine them reliably. Yet courts routinely reject defendants’ requests to employ the Constitution’s prescribed methods of ensuring reliability: confrontation and cross-examination. That practice rests on a simple premise: the Sixth Amendment’s Confrontation Clause does not apply to sentencing.

​Taking a textual, historical, and structural approach, this Article challenges that premise. The conventional wisdom lacks a footing in the language of the Sixth Amendment, is not supported by historical practice, and departs from the adversarial truth-finding process at the foundation of American criminal procedure. Moreover, it seems to have arisen almost entirely by accident. Properly understood, the Confrontation Clause’s protections are not limited to the unusual case where guilt is contested; they exert their influence even on the determination of the proper punishment.

For reasons explained below, we hold that this Court does not have statutory authority to review the factual sufficiency of the evidence. We also hold that the evidence is legally sufficient. We further hold that any misconception by the AFCCA about the amended standards applicable to its factual sufficiency review was harmless. We therefore affirm the AFCCA’s decision.

Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated:

"One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . [Experience] on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one." Jackson, Advocacy Before the United States Supreme Court, 25 Temple L. Q. 115, 119 (1951).

Justice Jackson's observation echoes the advice of countless advocates before him and since. An authoritative work on appellate practice observes:

"Most cases present only one, two, or three significant questions . . . . Usually, . . . if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones." R. Stern, Appellate Practice in the United States 266 (1981).

​There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts -- often to as little as 15 minutes -- and when page limits on briefs are widely imposed. See, e. g., Fed. Rule App. Proc. 28(g); McKinney's New York Rules of Court §§ 670.17(g)(2), 670.22 (1982). Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments -- those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal, 26 A. B. A. J. 895, 897 (1940) -- in a verbal mound made up of strong and weak contentions. See generally, e. g., Godbold, Twenty Pages and Twenty Minutes -- Effective Advocacy on Appeal, 30 Sw. L. J. 801 (1976).

This Court's decision in Anders, far from giving support to the new per se rule announced by the Court of Appeals, is to the contrary. Anders recognized that the role of the advocate "requires that he support his client's appeal to the best of his ability." 386 U.S., at 744. Here the appointed counsel did just that. For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or our interpretation of that document requires such a standard.

Jones v. Barnes, 463 U.S. 745, 751-54 (1983).

United States v. Delisfort

This case is before us as an interlocutory appeal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 {UCM.I]. Appellant contends the military judge abused her discretion when she dismissed the case without prejudice for discovery violations after she improperly suppressed derivative evidence, failed to articulate actual prejudice to the appellee, and selected an extreme remedy that was not just under the circumstances.

"Trial counsel must exercise due diligence in reviewing not only the evidence in his or her possession, but also that in the possession, control, or custody of other government authorities, to determine the existence of discoverable information. See United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993); United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999). Trial counsel is required to review "files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses."

United States v. Hays