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.

When a party objects to testimony or documents they should state “I object” and cite the evidence rule or principle and nothing else. You may be tempted, but don’t make a speaking objection.

United States v. Gurfein, NMCCA 2019, is an example of why speaking objections are improper and can cause problems. I have had trial cases where I’ve had to cut trial counsel off from making a speaking objection in front of members. I have appellate cases where the counsel and military judge engaged in a discussion of the objection (sometimes lengthy and detailed) in front of the members–this is improper.

Defense counsel–shut trial counsel down when they make speaking objections in front of members. I know judges want to save time and not inconvenience members, but you have a client who may be adversely affected by what they hear.

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United States v. Vick, ACCA 2019.

Prosecutors and convening authorities require an accused to plead guilty to charges which the accused is not provident, but it’s a take it or leave it deal and the accused dutifully complies, only to have the whole process go awry.

Is Vick such a case of unreasonable requirements from the prosecution.

Appellant argues his trial defense team was ineffective. Appellant’s argument involves mistaken identity, fraternal betrayal, technological mystery, and a healthy dose of bad luck. The argument is ambitious and engaging, it is also wrong.

United States v. Carter, ACCA 2019.

A case to look out for.

United States v. Frost, No. 18-0362/AR

Issue: Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.

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Here is a link to a few cases of interest that were provided me last week at the 49th VACLE Criminal Law seminar.

Virginia is in the Fourth Circuit which, I believe, has a reputation as slightly conservative leaning.

United States v. Abdallah, ___ F.3d___ (4th Cir. 18 December 2018).  Code 45 Alumni and friend Jim Wynn is one of the panel members.  This case involves two issues: invocation of the right to silence and the all-important Brady issue.

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Appellant challenges the factual sufficiency of his conviction for sexually assaulting MB. We have reviewed the evidence, which includes a video-recording of

appellant’s sexual encounter with MB. The video-recording demonstrates that MB repeatedly gave audible consent—or at least what reasonably appears to be audible consent—to sexual intercourse with appellant. Considering this evidence, we are not personally convinced that MB was incapable of consenting to the sexual intercourse.

The footnote to this finding states:

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