Articles Posted in Trial-Craft(c)

I was reading Unwashed Advocate today, and thought I would repeat his good advice on how best to make a motion or objection at trial.  I have a couple of additional thoughts, but otherwise his is good advice.  He says, and I quote extensively:

However, when it comes to making a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

B. State Reason

PDC:  Your reason for an objection should be short – preferably giving only the rule number, especially if this is happening in front of members.

C. Listen to other side

PDC: Agreed.  But it is especially important if the other side starts to give more detail and argument about why the objection should be overruled in front of the members.  If that happens ask for the members to be excused while you take this up in a 39(a) session.  Sure, the judge won’t like the up-and-out, but it’s your client on trial.  I read any number of records of trial where the trial counsel and judge engage, sometimes in great detail about the evidence and objection – all in front of the members.  What a way to educate the members!  And then how effective is it to give a curative or limiting instruction – Not!

D. Clarify [your reasons] in light of what other side said.

E. Go back and forth until judge directs a halt.

PDC:  At this point you should be focused on what the trial counsel is arguing.  Listen to the judge’s questions and respond to them.  Sometimes you can hear the judge tell you how to argue your objection, or give you a key to persuading her to rule in your favor.  I had a good friend and judge many years ago who would rule, “not on that basis -denied.”  Once I got to know his ways I realized that sometimes he was telling you there was a basis you just hadn’t raised it – yet.

F. Listen to ruling from judge.

G1: If the ruling is in your favor. SHUT UP (emphasis added).

G2: If the ruling is not in your favor, ask for reconsideration [or to add to the record] based on clearly articulated factors and state any points that seem necessary to complete and clarify the appellate record. Done and done.

PDC:  I would be careful here because of Rule F., and what follows – you have to make a record, but . . .

At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.

PDC:  I have seen young trial counsel do this too often.  They are basically saying “judge you are wrong and we are right.”  Not an effective practice for the particular objection, or future events.  Some judges can get shirty about being told they are wrong – even if they are wrong.

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
  3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).  Without this finding, there is no IAC even if there is an error, because there is no prejudice.  However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error.  There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion?  No.

Do you have to raise every single motion the client asks you to?  No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal?  We know the MJ can hold such a hearing.


Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends.  The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it.  At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense.  Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism.  So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and  “erotic asphyxiation.”  There is confusion over application ofthe term and the scope of the behavior.  There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly.  Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense.  I have several appeals now where this issue is clearly presented.  But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

The Wikipedia entry on the choking game begins, “The choking game (also known as the fainting game and a wide variety of local slang names) refers to intentionally cutting off oxygen to the brain with the goal of inducing temporary syncope and euphoria.”  I cite Wikipedia because it is generally consistent with the research and anecdotal information I am aware of.  Wikipedia goes on to suggest the following.

Limited research has been conducted regarding motivations for practicing the fainting game, although thrill-seeking has been identified as a risk factor, as has the perception that it is a low-risk activity. Anecdotal reasons stated include:

Peer pressure, a challenge or dare, a rite of passage into a social group or amusement over erratic behavior.

Curiosity in experiencing an altered state of consciousness, the experience of a greyout, or an imagined approximation to a near-death experience.

A belief that it can induce a brief sense of euphoria (a rushing sensation or high).

The prospect of intoxication, albeit brief, at no financial cost.

Reasons for practice are distinct from erotic asphyxiation. Steve Field, chairman of the Royal College of General Practitioners in London, claims that the fainting game is pursued primarily by children and teens “to get a high without taking drugs.” Children “aren’t playing this game for sexual gratification.” It is frequently confused with erotic asphyxiation, which is oxygen deprivation for sexual arousal. Unlike erotic asphyxiation, practice of the fainting game appears to be uncommon in adulthood.

Here’s the Trial-Craft.  The prosecution identified an expert to come and testify about the physical effects of choking a person as a way to prove an aggravated assault as well as the rape.  But, that’s all they talked to the expert about during their interviews and preparation.  When I talked to the expert I talked about the choking issues and it turned out that based on his current practice and experience he was well aware of the choking game and it’s current “practice” especially by the young.  So when it came to trial I was able to make their expert my expert – to great effect.

The choking game defense in my case did result in acquittals on the rapes.

Friend Christian Capece liked a post on Linked-In

“The most dangerous phrase is, “we’ve always done it that way.””

That amused me because it immediately brought to mind United States v. Fosler.

And Fosler came to mind so readily because I was just discussing litigating issues with some younger counsel, and a question was, and often is – did you win it?  No, is often the answer.  But you the defense litigator should not take that as the final answer.  The law changes, see e.g., Fosler.  So, I recently continued an issue I have been raising for some years now – true without success.  But I think the Navy may have done something to help.

I have at times challenged how (by who) the Article 32, UCMJ officer is selected and appointed.  In some cases I have challenged the IO on the basis of that selection.  Well this week it just got more interesting.  I did a Navy 32.  I began my standard voir dire and developed what I needed – I thought – and challenged the IO.  While we were discussing this with the SJA on the record, and then waiting for a AA decision and new “fact” arose.  The IO is a member of a Reserve unit, that as I understood the evidence (discovery to come) is there “to support the RLSO,” or words to that effect.  Bingo, it seems as best I can tell at the moment that this is a RLSO unit.  Now, let’s see, the RLSO is now the prosecuting officer and provides the prosecutors.  The RLSO Reserve unit is “part” of the active duty RLSO.  Didn’t the AA just appoint a member of the RLSO as IO?  Well I’ll let you know, more discovery to come, etc.  I’ll need the mission statement for the reserve unit to see how it is incestuously intertwined, or inextricably intertwined, or . . .  with the RLSO, and go for a new 32.

Perhaps the Pres. should go with the proposal to have IO’s appointed to a panel maintained by the Circuit trial judiciary and appointed from and by the trial judiciary.  That allows for some independence and certainly a perception of independence.  So, back to my teaching point.

First the trial defense counsel has to find the issue.

Then the trial defense counsel has to raise and litigate the issue, or preserve it on the record.

Then appellate counsel have to raise the issue.

You may well lose the first, second, and subsequent times.  Here’s the real point, keep raising the issue.  It may take several cases and several years before the judge grants on that type of issue, or the appellate courts deal with it, and the appellate courts deal with the issue in the defense favor.

At trial you must represent the individual client, not necessarily a particular issue.  I agree.  But there is no reason you can’t raise issues in each case.  You are allowed to and in fact are ethically encouraged to keep raising issues.  How you go about that is a different point.

Make the trial counsel regret having always done it that way.

The older the alleged other acts the worse the case for admission of MRE 404(b) matter in my view.

Trial counsel will often seek to admit prior bad acts through MRE 404(b).  The UCMJ does not have rules of evidence in the statute, the rules of evidence are published by the President using his power to make court-martial rules and procedures.  The rules of evidence (current as of 1 Aug. 14) are published in the Manual for Courts-Martial.

As I have routinely cautioned, be alert to and challenge “talismanic incantations” of MRE 404(b) admissibility that merely cites the rule.  You should require the trial counsel to cite which specific exception(s) they rely on, then be precise how the supposed other acts will actually serve to make that or some other critical fact provable.

The prosecution cannot offer prior bad acts just to show, and which merely show, a bad person who may have some predisposition to commit the crime.  United States v. Humpherys, 57 M.J. 83, 90-91 (C.A.A.F. 2002).  This makes sense, profiling and propensity have rarely been a legitimate consideration for trials, except for military sexual assault cases.

Challenging, often through motions in-limine, such evidence should be a stock-in-trade for your military defense lawyer.  Under the UCMJ and Manual for Courts-Martial, as well as the various Army Court of Criminal Appeals rules, a military defense lawyer can file motions in advance of trial.  It is a good idea.  It is better to litigate the issues before the trial counsel prosecutor has a chance to have them mentioned in front of the members (the jury in civilian parlance).

If the evidence fails any of the three tests, it is not admissible.  United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992); United States v. Reynolds, 29 MJ 105, 109 (C.M.A. 1989).  The Reynolds test requires the prosecution show the evidence on the other crime reasonably supports guilt of that other crime (an opportunity for the defense to show how a trial within a trial may occur); that the other crime is supportive of the theory for its admission; and survive a MRE 403 balancing test.  See United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006); United States v. Yammine, (C.A.A.F. 2010).

When it comes to the relevance of a prior bad act it seems to me that a factor must be how close in time to the charged offenses.  If it is a prior bad act of distributing some drugs a few weeks before the alleged offense, then there is a proximity arguing for admission.  However, a distribution many years ago before joining the military is not proximate and should be considered inadmissible.  I do not say such an act is automatically or per se inadmissible.  And that’s the thrust of the court’s decision and analysis in United States v. Wallace, in which the Fifth noted the circuit law that remoteness may weaken probative value, but remoteness has never been held to be a per se bar for admission.  The court also cautioned that there was no per se rule of admission either.

Your military defense lawyer should also be aware that prior acts that resulted in a court-martial AND an acquittal might still be used in a later trial under MRE 404(b).  Read United States v. Tyndal, as an example.  I encourage clients to read along with me on the UCMJ, court-martial, and military sexual assault to be informed about their case.

Back to Reynolds, especially in sexual assault cases, but in all cases when balancing matters under MRE 403, reference to the “Wright factors” is helpful at the trial level and will allow for some deference to the military judge on appeal.  United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)(listing seven non-exclusive factors).  One of the specific factors is – temporal proximity – so it doesn’t just seem, it is.

So, it’s still a contextual analysis of the prior acts and how they may go to prove the current facts, without being more prejudicial than helpful.

Get your military defense lawyer to explain these issues, or if you need a case analysis get in touch with us.

Prof. Colin Miller has an interesting post about prosecutorial discretion during the course of trial.

Besides getting a conviction and an appropriate sentence, a secondary gain of the prosecutor is to have the case affirmed on appeal.  Affirmance means a guilty person doesn’t walk or get a new trial.

In the post Prof. Miller refers to a successful prosecution objection excluding “compelling defense evidence,” on what he terms a technicality.  He closes his post:

Absent some argument that the cell phone records are inaccurate, I have trouble understanding the prosecutor’s thinking in keeping them from the jury.  Even if the prosecutor was convinced of the defendant’s guilt (as the story reports), a conviction obtained in what appears to be a close case, without letting the jury hear this compelling evidence, seems sure to be a pyrrhic victory.  Putting aside any ethical considerations, the conviction (as described in the story) appears to be either the product of trial court error (if the cell phone evidence was properly offered) or ineffective assistance of counsel (if it was not).  A prosecutor who keeps out such evidence (in close cases) is playing with fire — effectively providing the defendant with a free chance at an acquittal, due to the strong likelihood of reversal on appeal, and courting a best case scenario of a temporary conviction, followed by the significant costs (financial and otherwise) of a retrial where the jury will ultimately hear the cellphone evidence.



Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system.  It seemed to work.

Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols, Texas Tech Law Review, Vol. 45, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper, 2012-70. Available at SSRN:  The author

argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials – notably judges, whose judgments depend on that process – should assume greater responsibility. The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.

Huuum, why not a pretrial conference on discovery and physical evidence.

Here is an interesting case from the Tenth, about cross-examination of a witness about a prior judicial “finding” that the witness was not credible — United States v. Woodard.

The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.”  U.S. Const. amend. VI.  One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination.  Davis v. Alaska, 415 U.S. 308, 315 (1974).  This is the“principal means by which the believability of a witness and the truth of his testimony are tested.”  Id. at 316.  A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.”  United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted).  Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’”  Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

Here’s what the defense wanted to XE on and what the USA had successfully excluded by a motion in-limine, as objectionable under FRE 403.

Before Defendant’s trial began, the government filed a motion in limine to prohibit Defendant from offering evidence concerning a prior determination made by a different federal district court judge that the MTD inspector was not credible.  In United States v. Variste, No. CR 06-1349 BB (D.N.M.), the district court issued a suppression order containing a finding that the court did not believe the inspector’s testimony.  Specifically, the Variste court found:

     “This Court does not believe [the inspector] detected the odor of raw marijuana emanating from the back of the trailer because he did not follow up and that information was not communicated to any other law enforcement personnel involved or given as a basis for any subsequent stop.”

The court found this to be an issue of first impression within the Tenth, so:

Although we have not addressed the issue of whether past judicial credibility determinations are admissible under Rule 608(b), several of our sister circuits have done so and held that they are.  United States v. Cedeño, 644 F.3d 79, 82-83 (2d Cir.), cert denied, 132 S. Ct. 325 (2011); United States v. Dawson, 434 F.3d 956, 957-59 (7th Cir. 2006) . . . United States v. Whitmore, 359 F.3d 609, 619-22 (D.C. Cir. 2004).

The court concluded that the proposed cross-examination was “relevant and highly probative.”  The court then analyzed a number of factors to find that there was constitutional error in excluding the proposed evidence.  After an HBRD analysis the case was returned for a new trial.

Any CID, NCIS, OSI, CGIS agents out there who have testified and a military judge (perhaps extraordinarily so) has found them not credible in a prior case?  Discovery?

The NMCCA has issued an unpublished opinion in United States v. Belcher.  This case has lessons for the defense and the prosecution.

It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators.  The PTAO languished.  Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.”  The TC then provided the DC with a grant of immunity and order to testify.  The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].”  Later a PTA for 12 months was negotiated.

It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.

The contents of the subsequent exchange are disputed by the parties[.]

Some documentation may have helped – email for example.  It appears the defense counsel did not press the issues of ongoing PTA negotiations and clarify what was going on.  (This may have happened and that has not been put into the opinion, but the tenor of the opinion belies that.)

Notably, the appellant does not contend on appeal that the second trial counsel ever told him or his
counsel that the offer had been accepted.

And apparently the DC never asked?  On appeal appellant was left to argue:

The appellant’s main argument is that the Government constructively accepted his 9-month offer when its agents took advantage of his cooperation in the co-conspirator’s case.  We find that the appellant waived this issue when he entered an unconditional guilty plea according to the negotiated 12-month
pretrial agreement.

If the defense thought that they had an implied agreement or acceptance of an agreement, then a motion to “compel” or enforce an implied agreement would have been proper at the time of trial.

The first time the defense raised the 9-month confinement cap was in their clemency letter of 1 February 2012, making a case in equity based on the cooperation of the appellant in the absence of an approved
pretrial agreement.

A pretrial motion to enforce an implied PTA would have helped ferret out the facts, make a record, and have a military judge possibly agree with the defense.  At least NMCCA would not have been able to find waiver, would have been forced to address the issue (had the MJ ruled against the defense), and Appellant might have gotten some pyrrhic appellate relief (trial was in December 2011 and the decision is dated yesterday).

Trial counsel could have helped here in being clear about what was happening with the PTA negotiations and the immunity issues.  (Although perhaps that’s where some of the undocumented discussions are disputed.)

I was thinking this morning about issues that a trial defense counsel ought to be aware of and/or know about for appeals.

This evening I got a VACLE “tip,” entitled, Did You Know? What’s the most common reason arguments on appeal are not heard on the merits?  The following was included.

Proffer excluded testimony and exhibits for the record: One of the least understood practices essential to preserving error concerns proffers. If testimony is excluded, the appellate court generally cannot address an appeal on that point unless the party offering the testimony proffers the testimony so that it is part of the record. Likewise, exhibits that are excluded need to be marked “excluded” and included in the record, and the offering party must demonstrate in the record not only an objection to the exclusion but the reasons supporting the objection.

Never ever try a case for appeal.  You want to WIN at trial.  But, there is no harm in keeping in mind there could be an appeal and that issues need to be preserved with either a proper objection, or as the tip points out a proffer.