Court-Martial Trial Practice

We all have clients who have been ordered to enter their passwords to their cellphone so the investigators can forensically examine the phone. As military defense counsel we frequently have these issues come up.

In 2018 there were an estimated 396 million smartphones and cellphone accounts nationwide. Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018). Important personal information exists in smartphones. In the context of searching smartphones, the requirement for specificity should be at its apogee. Smartphones are mini-computers with extraordinary amounts of personal information, increasing exponentially on the device. Invading a smartphone is more harmful, quantitatively, and qualitatively, to privacy than invading a house or even early cellphones. See generally, United States v. Riley, Brief of Electronic Privacy Information Center (EPIC). The court in Riley observed that,

“modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smartphone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago[.]

We all have clients anxious to know their SOR status post-conviction.

We are required to, at minimum, advise them of the DoD regulation when there is a guilty plea for charges which might require registration.

But clients are never satisfied. Here is one case that might have some relevance to registrant’s in South Carolina.

There was a time when having adverse information in a restricted folder in the official record meant something in terms of lasting effect of that information.

Over time that changed if the officer was selected for promotion. A post-selection screen was then made of everything before forwarding the officer’s name for promotion.

Now,

Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), requires us to visit the Hobson’s choice where you have successfully had evidence or statements suppressed but there is much value added if the client testifies. The issue then becomes one of potential impeachment with the suppressed evidence.

Mil. R. Evid. 304(e)(1) gives us a partial answer.

(e) Limited Use of an Involuntary Statement. A statement obtained in violation of Article 31 or Mil. R.

In United States v. Schloff, we had an issue with extraneous influences in the “jury” room. The two senior members essentially argued that the Army reputation for dealing with sexual assaults was relevant to their findings–and a guilty result ensued.

At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

Through luck, we discovered this post-trial, and the ACCA set aside the findings and allowed a new trial. In a footnote, the court observed the standard rule about jury deliberations.

I think we all know that MCIOs use Cellebrite UFED devices and software to conduct DFEs of an accused’s cell or smartphone.

Up until now, it seems, the DFE reports have been accepted as reliable and accurate so we do not often find ourselves litigating the reliability of the DFE reports.

Have circumstances changed which require more attention to the underlying forensic examination of the DFE? I ask because of a new report from Engadget, “Signal hacked Cellebrite’s phone hacking software used by law enforcement.”

The Army has announced servicewide and command-specific changes in the wake of a scathing independent report last year that called for a major overhaul of both its Criminal Investigation Command and its Sexual Harassment/Assault Response and Prevention Program, reports Army Times.

The changes include the following, according to an Army statement:

Army-wide

Until now, a person wishing to upgrade their discharge would file a petition with the Service discharge review board. Beginning April 2021, the Department of Defense has established a new and final board of appeal, called the Discharge Appeal Review Board.

The new Discharge Appeal Review Board will allow those service members a final review of their requests to upgrade their discharge or dismissal characterization after they have exhausted all other available administrative options, the Defense Department’s release said. Congress ordered the board created in the fiscal 2020 National Defense Authorization Act.

Air Force

Another item from Prof. Colin Miller

Professor Katie Kronick (American University Washington College of Law) has posted “Forensic Science and the Judicial Conformity Problem” (Seton Hall Law Review, forthcoming) on SSRN. Here is the abstract:

Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports reveals that many areas of forensic science are not only vulnerable to human error, but also lack scientific or evidentiary support for the conclusions they purport to reach. This includes fingerprint analysis, firearm and toolmark examination, bitemark comparison, and hair microscopy. Yet judges continue to admit this expert testimony in criminal cases ranging from homicide to firearm possession to sexual assault without the critical analysis one might expect given the now well-identified problems and the stakes at hand.