A couple of new opinions from NMCCA address issues related to CP prosecutions.
United States v. Jones, III, has this issue:
WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT’S PLEA WAS PROVIDENT.
Basically, NMCCA concludes that there is no requirement for an accused to refresh his memory from looking at the alleged CP in order to survive a providence inquiry. The accused was able to provide sufficient facts and circumstances to satisfy the military judge and NMCCA.
United States v. Lobsinger. There are several issues of interest.
1. Dr. Craig testified that the images were children. I find this interesting because I have had at least one case where her methodology developed and used at the Armed Forces Center for Child Protection (AFCCP) was excluded on a Houser motion, and that the remainder of the testimony would be unnecessary. If a child is obviously a child, say below puberty, why do you need an expert to tell you that. If a “child” is borderline 18, how can an expert tell you that, especially with the methodology used at the AFCCP. And that’s what the judge held in a prior case for me. And more importantly, if you need an expert, how can you convict an accused who isn’t an expert? To me this is a fatal flaw, or ought to be, when the alleged images could be of persons around the age of 18. Unless you have a known victim, how cannot it not be speculation that the person was 17 years and 29 days old or 18 years and a day old?
2. The military judge allowed a hearsay statement of the alleged child victim, made to her mother, under the residual hearsay exception, Mil. R. Evid. 807. Apparently the defense was not able to challenge the mother’s credibility. While this seems the right result on the facts, counsel should also consider and be wary of the mother’s interest in providing damaging testimony, if for example there is a particularly nasty divorce and child custody case ongoing. The child here was 3/4 at the time, so I wouldn’t look at this case as opening up a huge door in the Mil. R. Evid. 807 exception that could lead to swallowing up the rule on hearsay and confrontation.
3. Note the highly unusual procedure adopting for the direct and cross-examination of the alleged victim.