Uncategorized Category Archives — Page 47 of 113 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Dual or multi-purpose

October 10, 2012 | The Law Office of Philip D. Cave

Here is an interesting little piece.

The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense. Instead, efforts to counter violence should focus on prevention and mitigation of the threat.

The DSB was created and tasked in response to MAJ Hasan and the Fort Hood shootings. But does the report have important learning points in regard to sexual assault prevention.

Crawford at sentencing

September 21, 2012 | The Law Office of Philip D. Cave

The CAAF held that there is no right of confrontation at sentencing. The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do). United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000).

The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review. Here is the abstract:

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.

Worth the read

August 25, 2012 | The Law Office of Philip D. Cave

Adam A. Field, Beyond Michigan v. Bryant: A Practicable Approach to Testimonial Hearsay and Ongoing Emergencies, 2012 IL. L. Rev. 1265 (2012).

Confronting experts

July 8, 2012 | The Law Office of Philip D. Cave

Now that the current slew of confrontation cases are decided it’s time to regroup.

Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).

Confrontation, Experts, and Rule 703

In the Supremes

October 30, 2011 | The Law Office of Philip D. Cave

Lyle Denniston at SCOTUSBlog has a preview of Perry v. New Hampshire.

At 10 a.m. next Wednesday, the Supreme Court will hear one hour of oral argument on a case seeking clarification of when trial courts must exclude the testimony of an eyewitness to a crime because the testimony was unreliable. In the case of Perry v. New Hampshire (10-8974), arguing for Barion Perry of Nashua, N.H., will be Richard Guerriero, a public defender in Concord, N.H. Representing the state will be its Attorney General, Michael A. Delaney of Concord, with 20 minutes of time. Supporting New Hampshire, for the federal government as an amicus, with ten minutes of time, will be Nicole A. Saharsky, an assistant to the U.S. Solicitor General.

United States v. Rhodes, 42 M.J. 287 (C.A.A.F. 1995), seems to be ‘the’ military case.

Police created exigent circumstances

January 14, 2011 | The Law Office of Philip D. Cave

I don’t know that we’ve had this issue come up in military cases, but there’s a first time for everything. Plus this case highlights potentially confusing “tests” that arise from different courts.

During oral argument in Kentucky v. King on Wednesday, the Court struggled to find the proper test for determining when police are prohibited from justifying a warrantless search with exigent circumstances that they create. Because neither side supported the Kentucky Supreme Court’s two-prong test, a straightforward affirmance seems very unlikely; instead, the Court focused on whether the state’s proposed “lawfulness” test or another of the five tests currently being used by lower courts is best.

H/T to SCOTUSBlog.

CAAF publishes Hutchins

January 11, 2011 | The Law Office of Philip D. Cave

United States v. Hutchins.

Chief Judge Effron writes for a unanimous court.

The Judge Advocate General of the Navy certified the case to this Court for review of the following issues:
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS?
II. WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVYMARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL?
III. WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELL[EE]’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGH TRIAL?

New Mexico brief-Bullcoming

January 11, 2011 | The Law Office of Philip D. Cave

Prof. Friedman links to the respondents’s brief in Bullcoming v. New Mexico.

Two Supremes grants

January 10, 2011 | The Law Office of Philip D. Cave

Two Supreme Court grants of certiorari should be of interest to MJ practitioners. Here are links to SCOTUSBLog for the case materials.

Missouri v. Frye

Issue: Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel’s error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?

Post-trial duties

January 9, 2011 | The Law Office of Philip D. Cave

NMCCA has decided United States v. Owens.

The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that: