Articles Posted in Supreme Court

In preparing the petition for Schloff, we looked to the amount of cases coming through the system related to prosecutions under UCMJ art. 120.

The Army is “reporting” about 60% of cases for last year were sexual assault/120 cases.  We have not been able to gain similar “information” from the Air Force or Department of the Navy.  Anyone know?

On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.

There are two questions presented.

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and

(2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

The first question is of more interest than the second.  Military practice on motions waivable or otherwise is different from federal courts.  Essentially there is a circuit split where two circuits hold the government’s feet to the fire to prove additional “elements” instructed on, but not required by statute, with two circuits reviewing legal sufficiency based only on the statutory elements regardless of the court’s instructions.

The ever helpful SCOTUSBlog has previously commented on the case.

[W]hen the jury was ultimately instructed, the judge mistakenly told them that the statute “makes it a crime for a person to intentionally access a protected computer without authorization and” – not “or,” as the statute and the government’s proffered instructions actually said – “exceed authorization.”

The jury convict[ed].  [A]fter a motion for new trial was denied [it was] notice[d] the “and” versus “or” error in the instructions. [The Apppellant of course then sought to argue for dismissal.]  The trial court rejected that belated argument, as did the court of appeals, ruling that the statute and the indictment express all the elements the government must prove, and that the mistaken injection of an additional element was both irrelevant and harmless here.  Indeed, it redounded to Musacchio’s benefit at trial, by adding to the government’s burden of proof (as Justice Ruth Bader Ginsburg also noted during yesterday’s oral argument).

Mr. Little impliedly predicts Mussachio loses because he does “not perceive any support for Musacchio’s arguments in the transcript of oral argument. Rather, there were repeated expressions of non-understanding or outright rejection.”







The problem is that the CCA’s don’t do that enough.  But at least they have the power.

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

As the gubmint’s oft-stated “it’s too hard” argument CAAF said:

As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be assembled and informed of the facts. 10 C.M.A. at 299, 27 C.M.R. at 373. However, a process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.

Along with deciding the issue, CAAF made a couple of comments interesting to those students of CAAF’s stare decisis belief.

  • We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
  • Legislative history does not support overruling.
  • A long supportive history following the case sought to be overruled and thus an argument for consistency.  But, one asks, what about Fosler?
  • The Supreme Court has held that stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. at 231. As noted, the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow.  (Fosler anyone?)
  • (Note from the two dissenting judges)  The fundamental error in the court’s analysis was in according the policy of stare decisis an aspect of flexibility that it does not have. A precedent-making decision may be overruled by the court that made it or by a court of a higher rank. That discretion, however, does not reside in a court of a lower rank. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)

The Supremes anyone?


Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A “Serious” Crime Without A Search Warrant

4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

5. Certification (a civil case).

6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

7. Addressing Juror Internet Research During Trials

8. Electronic And Internet Evidence Issues

9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

10.  Rule Amendments: FRE 803(10) (Absence of a Public Record)

Each of the above issues had something of value and interest to military justice practitioners.  For example:

In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.

And now, “we look forward at some key evidence issues that may arise in 2014.”

 Key Evidence Issues for 2014

 1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

4. Open Issue (civil case):

5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

6. Legislation: Will Congress Enact a New Media Shield Privilege?

7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts

9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

10.  Considering the Role of Cameras in the Courtroom

Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.

[T]he second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.

(Note:  I have one case pending at a CCA on issue 5 – impeaching a verdict.)

For those interested in the history of the Constitution and its judicial interpretation, the George Washington Law Review has a:


edition.  Volume 80, No. 5, includes:

A Dialogue on Statutory and Constitutional Interpretation
The Honorable Antonin Scalia & John F. Manning
80 GEO. WASH. L. REV. 1610 (2012)


A Dialogue with Federal Judges on the Role of History in Interpretation
Amanda L. Tyler, Moderator, The Honorable Frank H. Easterbrook, The Honorable Brett M. Kavanaugh, The Honorable Charles F. Lettow, The Honorable Reena Raggi, The Honorable Jeffrey S. Sutton & The Honorable Diane P. Wood
80 GEO. WASH. L. REV. 1889 (2012)

Professor Friedman has posted various amicus pleadings on his blog here.  He lists one not currently on the SCOTUSBlog for the case.  A little more here with Supreme Court cases with potential impact on military justice.  Professor Friedman does note as to his own filing:

There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.

SCOTUSBlog has a petition for the day which may have some military justice impact if granted.

Hart v. United States.  The response is due 29 September 2011.

Here is the QP:

Whether 18 U.S.C. § 2422(b) – which makes it a crime "to knowingly persuade, induce, entice, or coerce any individual who has not attained the age of 18 years to engage in… any sexual activity for which any person can be charged with a criminal offense" – requires a jury to come to a unanimous verdict on a single, specific underlying criminal offense for which the defendant could be charged.

Here’s a possible hook into current military practice (and I think you can substitute the two-thirds for the unanimous).  Does this set up a Walters–like issue?   I’ll cite from United States v. Trew, 68 M.J. 364 (C.A.A.F. 2009), a case I had at trial.

When the phrase “on divers occasions” is removed from a specification, the effect is “that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.”  United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005).  “If there is no indication on the record
which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review.  United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F. 2003).”  United States v. Wilson, 67 M.J. 423, 428 (C.A.A.F. 2009).

While it’s is not a “divers occassions” the charge does allege different, and thus divers methods, of violating the statute.  What if some members thought my client was enticing and others thought coercing, and they all voted guilty by two-thirds, but two thirds didn’t agree on the entice or the coerce?

The second QP asks about double jeopardy concerns for a conviction on both 18 U.S.C. § 2422 and 18 U.S.C. § 2251.  I have one of these cases and I’m not sure this would be applicable to court-martial when charged under Article 134, UCMJ, depending on how it was charged.

See prior petitions of note.

White v. Illinois, a crime lab report case will be argued 6 December 2011.

SCOTUSBlog reports their “petition of the day,” which is a criminal evidence case with potential relevance to military justice practitioners – Childers v. Florida, if granted.

Issue two is:

2. Should the Court resolve a conflict in the Circuits and clarify whether its Confrontation Clause
precedents, Olden v. Kentucky, 488 U.S. 227 (1988), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and
Davis v. Alaska, 415 U.So 308 (1974), permit a trial court to preclude cross-examination into the bias of a key witness on the ground that the trial court has allowed some cross-examination into bias.

Other cases to follow:

Williams v. Illinois.

Missouri v. Frye, Lafler v. Cooper.  Each of these cases deals with IAC at the time of pretrial negotiations, as does Premo v. Moore, which was decided 19 January 2011.