Defenses Category Archives — Page 2 of 2 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Criminal Responsibility of War Veterans with PTSD.

September 16, 2009 | The Law Office of Philip D. Cave

Here’s a useful and timely article.

Hafemeister & Stockey on Criminal Responsibility of War Veterans with PTSD

Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.

/tip CrimProfBlog

Self-defense – again.

July 24, 2009 | The Law Office of Philip D. Cave

I have previously commented about evidence of the victim’s character for violence and specific incidents. To refresh – there are several ways the assault victim’s character for violent behavior can become relevant and admissible in an assault case.

a. The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b. The prosecution puts on opinion testimony of the victim’s character for peacefulness.

SODDI

July 22, 2009 | The Law Office of Philip D. Cave

Does the SODDI defense work?

Here are some thoughts or considerations.

Elizabeth R. Tenney, Hayley M.D. Cleary, Barbara A. Spellman, "This Other Dude Did It!" A Test of the Alternative Explanation Defense, 21 The Jury Expert July 2009.

Right to present a defense

April 13, 2009 | The Law Office of Philip D. Cave

Here’s an interesting post by Prof. Miller.

Colin Miller, Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal, 13 April 2009.

Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:

PTSD in courts-martials

April 10, 2009 | The Law Office of Philip D. Cave

I’m sure you, like me, have used or tried to use PTSD at trial, either on the merits or at least in sentencing. Along with TBI, PTSD seems to have a significant impact, especially when it results from combat. There has been a lot published over the last few years about how the military handles – or doesn’t handle – these cases. I have found differing attitudes within the various “jurisdictions” I’ve traveled. For example, at Fort Belvoir, they have an exceptional program, well staffed and seemingly well balanced in their approach. Here is an item that may be of interest.

Michael de Yoanna & Mark Benjamin, “I am under a lot of pressure to not diagnose PTSD,” Salon, 10 April 2009.

Thanks to Karen Franklin, and here is her commentary on the article.

Art. 120 constitutionality issues

April 1, 2009 | The Law Office of Philip D. Cave

Here is the NMCCA en banc opinion in United States v. Neal, __ M.J. ___ NMCCA 200800746 (N-M Ct. Crim. App. March 31, 2009)

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Double jeopardy and collateral estoppel

March 19, 2009 | The Law Office of Philip D. Cave

Yeager v. United States will be argued Monday at the Supreme Court.

Under the doctrine of collateral estoppel, a prior court’s decision on

an issue necessary to its judgment can preclude relitigation of that

BAH Fraud and mistake

February 14, 2009 | The Law Office of Philip D. Cave

If you are like me you are doing a lot of BAH fraud cases right now, especially for recalled or activated Guard and Reserve personnel. The AFCCA has issued an opinion about mistake and instructions in the fraud type case.

United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App. 10 February 2009).

In Armstrong the MJ gave a mistake of fact instruction on two offenses (and appellant was acquitted on those two offenses), but declined the instruction on a third allegation. The AFCCA found harmful error and reversed.