Articles Posted in Trial-Craft(c)

Here is something from good friend Don Rehkopf as a reminder to defense counsel.
1)   For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or
2)   Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD;

Once again it is the duty of the defense counsel to police the prosecutors not for the prosecutors to police themselves. That is one of the conclusions from the new decision—United States v. Voorhees,

https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf,

just decided by the U. S. Court of Appeals for the Armed Forces.

Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

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.

I have had cases of the reluctant witness, typically the spouse physical abuse cases, to United States v. English (ACCA 2018) was not a surprise in terms of the issue.  The alleged victim was refusing to cooperate in the prosecution so the prosecution tried to introduce prior statements.  The prosecution uses Mil. R. Evid. 803(5), the rule about prior recollection recorded.  In English the prosecution and the judge erred.  The prosecution needed to check three foundational boxes–but they didn’t according to the ACCA.

(1) the recorded statement contains matters of which a witness once had knowledge but now has insufficient recollection to enable the

witness to testify fully and accurately;

I, currently, ask for the following as a minimal initial discovery request.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner.  This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked.  The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue.  In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.

We can expand the initial request as more information comes to light.  I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

Once the MCIO gets a “confession” or DNA in a sexual assault case, it seems, they stop investigating–bad.

Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.

Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk.  OK, where are the bar receipts?  No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available.  Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts.  The receipt tells you a number of things:  time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?)  Or, how about the video from the base entry point when the CW walks or drives or is driven on base?  Is it possible the video helps show how unintoxicated the CW was or wasn’t?  CCTV?  Remember, the MCIO doesn’t usually care about this stuff.

The Air Force Court of Criminal Appeals (AFCCA) has issued an interesting en banc (5-3) opinion in United States v. Hamilton, 76 M.J. ___ (A. F. Ct. Crim. App. 2017), about victim impact evidence or statements.

The accused pleaded guilty to the possession and distribution of child pornography.  On sentencing, as we often see in these cases, the prosecution introduced unsworn statements of the victims, all of which predated the accused’s date of offenses.  For those who haven’t been exposed to these statements, generally, they review the abuse that occurred at the time the video or image was taken and the subsequent life and health effects on the victim.  We know that courts allow such information because of the idea that a victim is re-victimized each time a person views or distributes the images–it’s essentially an ongoing crime.  Slip op. at 7-8.

I think there are several takeaways for practitioners.

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence.  The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

Under Article 62, UCMJ, the prosecution can appeal a military judge’s trial ruling under six circumstances.  The two most common are:

(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

For example, a military judge dismisses a specification because the specification fails to state an offense.  That is what happened in United States v. Schloff.  The government appealed, the ACCA decided the appeal in favor of the government, CAAF agreed with the ACCA, and the Supreme Court declined to issue a writ of certiorari.  (We are now in the traditional Article 66, UCMJ, appeal before ACCA on the sole specification for which there was a conviction.)