Court-Martial Trial Practice BlogMilitary defense counsel advised a client in trouble under the UCMJ will know about the right to silence and counsel.
1. Fifth Amendment Rights & Article 31, UCMJ — Overview
Fifth Amendment
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Access to psych records
United States v. Mellette. Your military defense counsel needs to know about and understand this case.
📘 1. Background and Prior History
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Accused & Charges
EM1 (Nuclear) Wendell E. Mellette, Jr. was tried by general court-martial at NAS Jacksonville in August 2019. Contrary to his plea, he was convicted under Article 120b, UCMJ (sexual abuse of a child) for committing sexual contact upon his 15-year‑old sister-in-law. He received five years’ confinement and a dishonorable discharge afcca.law.af.mil+10Lewis & Clark Law School+10Findlaw+10.
Virtual pornography
Case Summary and Analysis: United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009), that your military defense lawyer should consider. The Court of Appeals for the Armed Forces is about to get the case of United States v. Rocha, to consider private conduct which may or may not offend.
I. Background and Procedural History
Lieutenant Junior Grade Brendan C. Forney, U.S. Navy, was convicted at a general court-martial of conduct unbecoming an officer and a gentleman under Article 133, UCMJ, 10 U.S.C. § 933, for possessing child pornography. The pornography, consisting of approximately 1,700–1,800 images of naked adolescent girls aged 10–15, was found on government computers aboard the USS David R. Ray while the ship was underway.
Gambling–UCMJ
There are new reports that gambling by servicemembers is becoming a significant problem.
Patty Nieberg, Gambling addiction in the military may be going unnoticed, advocates warn. Task & Purpose, 3 July 2025.
Gambling is not per se criminalized under the Uniform Code of Military Justice (UCMJ), but it can be punished under several punitive articles when associated with misconduct that undermines good order and discipline. This is something your military defense counsel should know and be prepared to defend against.
Post-trial delay
The recent Coast Guard case outlines nicely for an accused and military defense counsel how an appellate court evaluates lengthy post-trial delay.
1. Governing Framework for Post‑Trial Delay
Courts evaluate post‑trial processing under two independent regimes:
Severance of charges
What is the bottom line for a military defense counsel or accused who want to sever court-martial charges? Southworth is the leading military case on the subject.
Factual Synopsis
Appellant faced a single, joint general court‑martial for two sexual‑assault episodes committed on successive evenings, 5–6 August 1995. The first involved AL, an adult Navy sailor, in a barracks “group‑sex” setting; the second involved LP, a 13‑year‑old civilian dependent, in a storage shed at a base festival. Before trial the defense sought severance under Rule for Courts‑Martial (RCM) 906(b)(10), contending that joinder posed an undue “spillover” risk because evidence from one incident would be inadmissible at a separate trial on the other. The military judge denied severance but offered special findings and ultimately instructed members that each specification must “stand on its own.” The panel acquitted appellant of raping AL (convicting only of indecent assault, later set aside for factual insufficiency) and convicted him of raping LP. On appeal, appellant claimed that the AL evidence impermissibly bolstered the LP case and that the limiting instruction was inadequate.
Right to counsel and continuances
In Weisbeck, the Court of Appeals for the Armed Forces addressed the question of a delay in trial after the accused hired a civilian counsel. This is a case your military defense counsel should be aware of. The case does not hold that a delay is automatic, but it does outline how an accused may make arguments in his favor.
An important point is what happens when the prosecution wants to offer evidence under Mil. R. Evid. 404(b), and the defense needs time to investigate and respond to that evidence.
United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) — Summary
Family Advocacy Program and Due Process
Here is a summary of an interesting article about how the Army FAP denies a servicemember of due process, and recommending changes.
We at Cave & Freeburg, have represented many servicemembers caught up in the FAP.
Executive Summary
Other acts-predisposition-Rule 404(b)
You are on trial for an offense and the prosecution wants to introduce evidence against you under Military Rule of Evidence 404(b). How does that work and what can your military defense lawyer do to exclude such evidence.
The first step is to object to the evidence before trial by filing a motion in-limine. Your military defense lawyer will then argue why the evidence is not admissible and challenge the prosecution’s arguments for admission.
Should something come up during trial, your military defense counsel must object to preserve the issue in the event of an appeal. Failure to object may result in the appellate courts deciding you have “waived” the issue and will refuse to consider it. Or, sometimes the appellate court will apply a less stringent “plain error” review.
Stalking Under the Uniform Code of Military Justice (UCM
I. Introduction
Stalking is a serious offense under military law, reflecting the military’s commitment to protecting service members from harassment, intimidation, and threats. It is criminalized under Article 130 of the Uniform Code of Military Justice (UCMJ), which was introduced as part of the 2013 amendments under the National Defense Authorization Act (NDAA) for Fiscal Year 2013. The offense aligns with the broader efforts to address domestic violence, harassment, and misconduct affecting unit cohesion and readiness.
As court-martial defense lawyers, Cave & Freeburg, LLP, have experience and success in defending persons accused of offenses under the Uniform Code of Military Justice. Call or email to discuss your investigation, charges, court-martial, or appeal.