Articles Posted in Defenses

I have previously commented about evidence of the victim’s character for violence and specific incidents.  To refresh – there are several ways the assault victim’s character for violent behavior can become relevant and admissible in an assault case.

a.  The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b.  The prosecution puts on opinion testimony of the victim’s character for peacefulness.

Here’s an interesting post by Prof. Miller.

Colin Miller, Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal, 13 April 2009.

Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:

I’m sure you, like me, have used or tried to use PTSD at trial, either on the merits or at least in sentencing.  Along with TBI, PTSD seems to have a significant impact, especially when it results from combat.  There has been a lot published over the last few years about how the military handles – or doesn’t handle – these cases.  I have found differing attitudes within the various “jurisdictions” I’ve traveled.  For example, at Fort Belvoir, they have an exceptional program, well staffed and seemingly well balanced in their approach.  Here is an item that may be of interest.

Michael de Yoanna & Mark Benjamin, “I am under a lot of pressure to not diagnose PTSD,” Salon, 10 April 2009.

Thanks to Karen Franklin, and here is her commentary on the article.

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. 10 February 2009).

In Armstrong the MJ gave a mistake of fact instruction on two offenses (and appellant was acquitted on those two offenses), but declined the instruction on a third allegation.  The AFCCA found harmful error and reversed.

An important reminder here is that the evidence of mistake, or any other defense, can come from the prosecution case and not just from the defense.  The point being that an accused does not have to testify in order to get an instruction on a defense (although appellant did testify in this case).  AFCCA cites to United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998).  If you have a statement from the accused that the prosecution offers in their case and it sufficiently presents the defense, the accused might not need to testify.  I know this is one of several reasons why trial counsel don't always present a "confession" during their case.

A second important point is to be clear on whether or not the offense alleged is a specific intent offense.  If a specific intent offense, then the mistake need only be honest.

So however you map out your elements — on a matrix, list, or whatever — identify the intent required to commit the offense, and then map out your potential defenses.