Uncategorized Category Archives — Page 109 of 117 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Giles update

March 30, 2009 | The Law Office of Philip D. Cave

Courtesy of FederalEvidence blog we have an update on Giles.

In Giles v. California [documents at SCOTUSWiki], the Supreme Court [Giles the opinion] considered the application of

the forfeiture by wrongdoing exception under the Confrontation Clause and likely Crawford v. Washington,

Where’s the court going

March 29, 2009 | The Law Office of Philip D. Cave

David G. Savage, Who's Policing the Fourth Amendment? Two cases push the unevenly enforced exclusionary rule closer to repealABA Journal, April 2009. Another writer musing on the potential demise of the Fourth Amendment as we thought we knew it.

Expectation of privacy in cyberspace

March 29, 2009 | The Law Office of Philip D. Cave

Here is an interesting piece from Wired. Bruce Schneier, Security Matters, Wired, 26 March 2009.

The piece talks about the challenges of maintaining privacy and a "Katz" level of privacy in an increasingly wired society.

In the United States, the concept of "expectation of privacy"

Supremes another shift

March 28, 2009 | The Law Office of Philip D. Cave

Is there about to be another shift in interrogations law from the Supreme Court. Earlier we mentioned several commentators on the subject of how the "new" court is changing personal rights when faced with investigators. See an earlier post: Exclusionary Rule — To be Dead Letter Law — Possibly?

Court questions Michigan v. Jackson from SCOTUSBlog.

The Supreme Court on Friday told lawyers in a pending case, heard on

CAAF and CP and conduct unbecoming

March 28, 2009 | The Law Office of Philip D. Cave

United States v. Forney, __ M.J. ___ (C.A.A.F. March 26, 2009). This is a case where the appellant was convicted on charges and evidence for a situation later declared unconstitutional by the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). This is the issue of actual versus virtual CP — primarily the Japanese anime cartoon type. However, the court found that the appellant could properly be convicted of conduct unbecoming in violation of Article 133, UCMJ.

[T]he possession of images of virtual children engaged in sexually explicit conduct may give rise to a conviction for conduct unbecoming an officer and a gentleman.

That the possession of virtual child pornography may be constitutionally protected speech in civilian society does not mean it is protected under military law.

CAAF and police reports.

March 28, 2009 | The Law Office of Philip D. Cave

United States v. Clayton, __ M.J. ___ (C.A.A.F. March 26, 2009).

In this case one police officer testified, and he was allowed to testify about his personal knowledge of drugs found. However, the military judge also allowed the witness to lay a foundation for a redacted translation of a German police report of drugs found and their place of finding by other police officers and a civilian. The other police officers and the civilian were not called as witnesses and they had apparently not testified at an Article 32, UCMJ, hearing or in a deposition.

Most pertinent to this case, the Supreme Court has identified “‘statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’” as an example of “core” testimonial hearsay. Rankin, 64 M.J. at 351 (quoting Crawford, 541 U.S. at 52). In turn, this Court has established “a number of questions . . . relevant in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial.” Id. at 352.