Articles Posted in Trial-Craft(c)

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.

This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.

The authors say the book was written to document which aspects of trial advocacy lore are actually supported by the literature. They comment that:

Trial commentators are [typically] relying on ‘pop’ psychology and seldom using social and behavioral scientific research as the basis for their proposed strategies.

This book addresses that omission by summarizing trial advocacy lore in each area and then examining the research literature to see what is actually supported and what is not. Each chapter is similarly structured. An overview of the trial advocacy literature is followed by a review of the social and behavioral research to see what recommendations are supported and which are not.

This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.

The authors say the book was written to document which aspects of trial advocacy lore are actually supported by the literature. They comment that:

Trial commentators are [typically] relying on ‘pop’ psychology and seldom using social and behavioral scientific research as the basis for their proposed strategies.

This book addresses that omission by summarizing trial advocacy lore in each area and then examining the research literature to see what is actually supported and what is not. Each chapter is similarly structured. An overview of the trial advocacy literature is followed by a review of the social and behavioral research to see what recommendations are supported and which are not.

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.”  I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive.  If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

The Criminal Rules Enabling Act, Max Minzner,  University of New Mexico School of Law
July 10, 2012
46 University of Richmond Law Review 1047 (2012)

The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA.
This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.

The Inspector Rutledge detective stories are a favorite of mine.  To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

As defense counsel we all need a Hamish (not one we have killed of course).  Sentencing is often the time in a trial when the ability to put as much favorable influential evidence or information before the fact-finder is at its apogee.  That’s a good thing because the actual fundamental purpose of sentencing is – to parse the rules, “to mete out an appropriate sentence for this offender and offenses.”  For some reason that’s why it struck me that United States v. Takara, ACM S31832 (A.F. Ct. Crim. App. 13 July 2012)(unpub.), is worth the read.