United States v. Filmore. 1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without…
In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench. (I have noted over the years that it takes most judges about a year to get their relative bearing.) I think we can all echo his comments and find a myriad of…
In the United States v. Jones the facts cited by the court show a consent defense. However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one. There being no evidence of an affirmative waiver the findings and sentence were…
At this point, the military judge interjected and asked 11 foundational questions of the witness. The questions were limited to Major D’s past service as an enlisted Marine in the same MOS as the appellant, his supervisory responsibilities as a Marine Corps gunnery sergeant within that MOS, the total number…
United States v. Story. Here the issue is two-fold: what is the response when the members want to call a witness, and what is permissible on appeal to demonstrate prejudice. ACCA found error in the military judge denying the members an opportunity to call a witness. On appeal, ACCA found…