Trial-Craft(c) Category Archives — Page 4 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Make it clear, get it in writing, litigate it

September 19, 2012 | The Law Office of Philip D. Cave

The NMCCA has issued an unpublished opinion in United States v. Belcher. This case has lessons for the defense and the prosecution.

It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators. The PTAO languished. Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.” The TC then provided the DC with a grant of immunity and order to testify. The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].” Later a PTA for 12 months was negotiated.

It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.

Preservation

August 31, 2012 | The Law Office of Philip D. Cave

I was thinking this morning about issues that a trial defense counsel ought to be aware of and/or know about for appeals.

This evening I got a VACLE “tip,” entitled, Did You Know? What’s the most common reason arguments on appeal are not heard on the merits? The following was included.

Proffer excluded testimony and exhibits for the record: One of the least understood practices essential to preserving error concerns proffers. If testimony is excluded, the appellate court generally cannot address an appeal on that point unless the party offering the testimony proffers the testimony so that it is part of the record. Likewise, exhibits that are excluded need to be marked “excluded” and included in the record, and the offering party must demonstrate in the record not only an objection to the exclusion but the reasons supporting the objection.

Is the Art of Advocacy all wrong

July 31, 2012 | The Law Office of Philip D. Cave

This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.

The authors say the book was written to document which aspects of trial advocacy lore are actually supported by the literature. They comment that:

Trial commentators are [typically] relying on ‘pop’ psychology and seldom using social and behavioral scientific research as the basis for their proposed strategies.

Depositions

July 20, 2012 | The Law Office of Philip D. Cave

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

b‘ware

July 20, 2012 | The Law Office of Philip D. Cave

The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

Experts and their presentation

October 15, 2011 | The Law Office of Philip D. Cave

I posted on experts at various points. But this video says it all about how expert witnesses should testify.

If you can’t watch here (potential problem with the embed, go to this link about The Entabulator catalytic converter.

The court will order . . . redacted

October 8, 2011 | The Law Office of Philip D. Cave

From time to time counsel want to offer documents which have objectionable information in them. There is an objection, and as often happens the court encourages or orders the objectionable parts be redacted. My here pointer relates to how the redaction is done – it must be done carefully. I was reminded of this general point by SCOTUSBlog’s Argument Preview of Greene v. Fisher. Greene is a case about Bruton (confrontation) issues and is not relevant to current military practice; it has been many years since the military has done a joint trial. What is relevant for us in practice is the redaction issue. Here are some relevant points from Rory Little’s preview.

The trial judge, however, denied severance and ordered instead – and not inconsistently with the law at the time – that the codefendants’ statements be “redacted” to omit any mention of Greene by name. The government complied but – and again, not inconsistently with the law at that time – replaced Greene’s name at certain points with the word “blank” or similar symbols, making it clear that redaction of someone’s name had occurred.

Thinking on notions of perception and implication and common sense, how would a jury interpret that document, or any document with redactions. Thinking on human behavior, and regardless of any limiting instruction from the judge, isn’t a jury going to try and figure out what’s redacted.

Cross-examination

October 8, 2010 | The Law Office of Philip D. Cave

Evan Schaeffer has posted an interesting tip, reminder, on his Trial Practice Tips Weblog. There are two requirements for success in exposing the liar.

First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";

Second, you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

Prosecutorial misconduct

October 2, 2010 | The Law Office of Philip D. Cave

On 23 September 2010 USA Today published a front page piece about federal prosecutors.

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

USA Today has an opinion piece in today’s paper which is a rebuttal.

Padilla in practice

September 14, 2010 | The Law Office of Philip D. Cave

Here is a training video and handouts from NACDL. This may be helpful with your junior enlisted court-martial clients who are foreign nationals.

In Padilla v. Kentucky, the Supreme Court held that defense lawyers must affirmatively and correctly advise their clients about the immigration consequences of entering a plea and failure to do so constitutes ineffective assistance of counsel. NACDL, in collaboration with the Defending Immigrants Partnership, will present a free live online training to discuss defense counsel’s duty under Padilla and related issues. Expert faculty analyze the Padilla decision, outline the steps defense counsel must take to provide effective assistance of counsel to their non-citizen clients, and provide essential instruction[.]