This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

ACCA is back online to the public.

On 27 March the court decided United States v. Ellis, a case in which:

Appellant asserts that the government’s failure to provide a copy of the accident report was a disclosure violation entitling him to relief on appeal. Appellant assigns both constitutional and non-constitutional error. We address both. In so doing, we address when a law enforcement investigation is separate from the investigation into the charged offense under Brady v. United States, 397 U.S. 742 (1970). We also discuss what constitutes a “specific request” for disclosure under Rule for Courts-Martial [R.C.M.] 701(a), triggering a heightened standard of review.

The NMCCA decided United States v. Kmiecik on 17 May 2018.

Kmiecik challenges the military judge’s decision to admit “a signed acknowledgment from the appellant that he understood the Marine Corps’ policy concerning the illegal use of drugs[,]” during sentencing.

For trial counsel and judges, and defense counsel.

Captain Milott has an interesting article about the use and interpretation of emojis and emoticons in criminal trials when they are part of a text, email, or some other social media message.  Many sexual assault courts-martial involve texts and emails between the complaining witness and a suspect–is there a damaging admission, a confession, or something helpful in defense?

Check out 44(3) The Reporter 61 (2017).

Expressing emotion in our digital lives presents unique challenges. Articulating joy, sadness, or laughter in non-verbal, non-word characters is a learned skill which can be interpreted differently than the author intended. Despite the danger of misinterpretation inherent in the use of emojis and emoticons, their popularity has increased since their online debut in the early 1980s.

Lagano, et al, The Air Force SVC Program: The First Five Years, 44(3) The Reporter 31 (2017).

We begin by examining the creation of the SVC program within the Air Force, the expansion of victims’ counsel programs throughout the Department of Defense (DoD), and the growing list of victims’ rights.  In the second part of this article, we examine the current state of the law and regulations governing the SVC program, highlighting the role of the SVC, and the responsibilities and obligations of the base legal office and others who interact with victims and SVCs. Additionally, we examine the most recent development in the area of SVC representation–Air Force Guidance Memorandum (AFGM) 2016-01 to AFI 51-504.

The AFGM states the general scope.

The number of exonerations involving wrongdoing by police, prosecutors and other government workers set a record last year, according to a report released on Wednesday. The findings are part of a larger trend that reflects America’s more aggressive attempts to expose and understand the causes of wrongful convictions.

The new statistics, released by the National Registry of Exonerations, documented 84 cases ─ half of them homicides ─ in which people were freed from prison in 2017 after their convictions were revealed to be tainted by official misconduct, as opposed to mistaken identifications, false confessions and false accusations.

In general, motive can be described as an inward emotion, passion, or feeling in a person which “is likely to lead” that person to do an “appropriate act” as “an outlet” for this emotion. See J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 117 (3d ed. 1940) (hereafter cited as Wigmore). The defense particularly contended that the prosecutrix had a feeling of anger towards appellant and a feeling of guilt concerning herself. She argued that it was reasonable to infer that an angry person would do some act of revenge against the person who was the object of her anger. She further intimated that a person experiencing guilt would do some act of revenge against the person who caused this feeling of guilt to surface. The particular acts to be inferred from this emotional state of mind in the prosecutrix were her false accusations that appellant raped her. No argument has been presented by the Government which would lead us to conclude that such acts of revenge could not be reasonably considered appropriate outlets for these emotions. Id.

United States v. Dorsey, 16 M.J. 1, 4 (C.M.A. 1983).

If you have been falsely accused of a sexual offense you are not alone.  I agree and understand that does not make your time in the hot seat happy, comfortable, or certain the truth will out.

Here is an article about sexual offense investigation and prosecution in the U.K.  U.S. service members will see similarities–sadly.

Guilty until proven nnocent: life after a false rape allegation.” Jonathan Wells, The Telegraph (UK), some takes and inferences.

Some may remember United States v. Denedo, where the appellant won at the Supreme Court, but then his appellate lawyer failed to file a petition to CAAF in time–out of court, done, no relief.

So here’s an interesting Coast Guard case–United States v. Reese III.

Reese filed a petition for a writ of coram nobis.

“An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.  This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.”  The accused has the burden to establish that the order is not lawful.  Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972).  Indeed, a professional military institution could not otherwise function without a service member having a duty to obey lawful orders.

 United States v. Kisala, 64 M.J. 50, 52, n.5 (C.A.A.F. 2006).

A piece at JustSecurity (WTR) begins: