tag:blogger.com,1999:blog-34853720.post7162846765990984713..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: CAAF releases Wuterich opinionDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-34853720.post-5944981181329476892008-11-18T18:03:00.000-05:002008-11-18T18:03:00.000-05:00JO'C - ah, with that explanation, I agree. I don'...JO'C - ah, with that explanation, I agree. I don't see how the government can establish that their appeal is proper under Article 61(a)(1)(B).Dew_Processhttps://www.blogger.com/profile/12952551772411097184noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-29140842899636170122008-11-18T17:18:00.000-05:002008-11-18T17:18:00.000-05:00My point isn't that the unknown nature of the evid...My point isn't that the unknown nature of the evidence mans the subpoena should be quashed. My point is directed at Rule 62, and my doubts that the government can meet its burden for an interlocutory appeal if it doesn't know what's on the tapes.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-76511231130184066222008-11-18T15:13:00.000-05:002008-11-18T15:13:00.000-05:00I tend to agree to a point with JO'C's point - a s...I tend to agree to a point with JO'C's point - a subpoena duces tecum, to be "proper" must be directed to specific, known evidence. That certainly does not appear to be the case here. But, then, under Art. 46, are you elevating form over substance?<BR/><BR/>A better approach may have been to depose the camera person, to first get an idea of what's on the out-takes, then you could make the necessary factual showing for the subpoena.<BR/><BR/>There's actually a good discussion of the gov't subpoenaing audio tapes without knowing what's on them, in U.S. v. Gen. Noriega's pretrial litigation, 764 F.Supp. 1480 (S.D. Fla. 1991).<BR/><BR/>I tend to agree with the Dissent though, since this was an Article 62, appeal - this wasn't excluding any "evidence." Would they grant a Writ if it was the Defense whose subpoena had been quashed????<BR/><BR/>But, the NMCCA's decision that Wuterich had no standing, when he is the real party in interest, was bone-headed.Dew_Processhttps://www.blogger.com/profile/12952551772411097184noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-32959411667165824782008-11-18T09:14:00.000-05:002008-11-18T09:14:00.000-05:00I actually buy the majority's conception of its ju...I actually buy the majority's conception of its jurisdiction, in that it can extend to an order quashing a subpoena, but in practice I don't think there can be jurisdiction here. When the government doesn't know what's on the outtakes, I don't see how it can make the certification that this evidence is "substantial proof of a fact material in the proceeding."John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-62254963189363555272008-11-17T19:09:00.000-05:002008-11-17T19:09:00.000-05:00Only when five lawyers get together can you have n...Only when five lawyers get together can you have nearly 70 pages on what 'exclude' means. ;-)Anonymousnoreply@blogger.com