From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided…
Here is an interesting piece about Members having certain types of electronic evidence in the deliberation room. A few federal courts provide guidance on the use of electronic evidence during jury deliberations, including the Ninth Circuit Model Jury Instructions and the U.S. District Court for the District of New Hampshire.…
Jury instructions to include rules on use of new media Recent incidents of jurors using new media during cases in civilian courtrooms in the States have led a military judge to rework instructions given to panelists in military courts-martial. Army Col. Ted Dixon, a military judge who edits the military…
In prosecution for first-degree murder and for using a firearm in the commission of a crime of violence, testimony that defendant threatened two percipient witnesses at the scene of the crime were admissible under FRE 404(b) to show consciousness of guilt, in United States v. Begay, _ F.3d _ (9th…
United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009). Let’s get the nub of the case from CAAFLog’s summary. Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of…
If you are like me you are doing a lot of BAH fraud cases right now, especially for recalled or activated Guard and Reserve personnel. The AFCCA has issued an opinion about mistake and instructions in the fraud type case. United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App.…
Professor Yung posts and asks Which Community Standard? The question relates to purchasing of alleged obscence materials across state lines. For courts-martial, the community standard question is also important for allegations alleging indecency or obscenity. It would be beneficial for a service-member being prosecuted at court-martial for an incident in…
C.A.A.F.’s decision in United States v. Burton, __ M.J. ___, No. 07-0848/AF (C.A.A.F. Jan. 15, 2009), leads to consideration of arguments on findings. [and for the curious, United States v. Burton, No. ACM 36296 (A.F. Ct. Crim. App. July 16, 2007) (unpublished).] The general principle on argument at trial is…