Articles Posted in Up Periscope

By regulation (the U.S. Navy Regulations and the Navy’s Standard Organization and Regulations Manual (SORM), OPNAVINST 3120.32x,), the Navy required personnel to report having been arrested or prosecutions for criminal acts by civilian authorities.

In United States v. Serianne68 M.J.580 (N.M.Ct.Crim.App. 2009), aff’d69 M.J. 8 (C.A.A.F. 2010). the courts found the order unlawful, in violation of a members right against self-incrimination under the Fifth Amendment, U.S. Constitution.

In response to Serianne, the Navy issued a new order (ALNAV 049/10 dtd 21 Jul 2010; NAVADMIN 373/11, 08 December 2011.7

You are an enlisted person.

1.  You are reduced at Art. 15 from E-6 to E-5, you retire as an E-5.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980.

2.  You are reduced at special court-martial from E-9 to E-6, you retire.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980.

3.  You are reduced at special court-martial from E-7 to E-4, you have sufficient time and you are re-promoted and serve in grade as an E-6 at the time you retire.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980. Continue reading

Senator Gillibrand is not happy.

Here is one of her unsubstantiated complaints.  I am quite sure that some of those committing sex offenses have done so before, and with predatory behavior.  But casting the vast majority of he said/she said cases as predatory men assaulting angelic waifs who can’t care for themselves is sexist and engaging in gender politics.

“More reporting is not the end game,” Gillibrand said. “Justice and removing recidivist predators from the military so they cannot commit more crimes to arrest the problem is the end game.

Human lie detector’s not admissible, still, a strong circuit trend.  This is consistent with military appellate case law.

With expert testimony admitted on a wide range of issues under FRE 702, what limits are there to expert testimony on the credibility of the defendant? As noted by the Tenth Circuit, a consensus in disallowing this expert testimony has emerged among the circuits; plain error resulted from the admission of this expert testimony requiring reversal of the conviction, inUnited States v. Hill, _ F.3d _ (10th Cir. April 28, 2014) (No. 12-5154)

One area of expertise may involve determining whether a witness is credible. Certain specialized training and techniques have been developed to gauge the credibility of a witness during an interview. While this expertise may be useful and employed during an interview, it is generally inadmissible at trial under FRE 702. The Tenth Circuit reviewed and reinforced its exclusion of such expert testimony, finding such exclusion the practice of other circuits as well. While there was no objection lodged at trial to the expert testimony, the circuit found the admission of this expert testimony constituted plain error.

Congress continues to tinker, rather than take a complete overview and make rational change to the UCMJ – the politics continue.  Meanwhile, we have to deal with the gruel they dish out.

So, keep an eye on any changes to the statute of limitations for various sex related offenses.  AND, keep an eye on any potential increases to punishments.

In Stogner v. California, 539 U.S. 607 (2003), the United States Supreme Court held that California’s retroactive extension of the statute of limitations for sexual offenses committed against minors was an unconstitutional ex post facto law. This is interesting because this would seem to apply to the California statute, if the offense has a short statute of limitations.  In particular, the Court found the California law proscribed by two categories of laws designated as ex post facto in Calder v. Bull, 3 U.S. 386 (1798):

There appear to be ten fairly consistent reasons for a wrongful conviction, according to a NIJ researcher.

In his series of pods Dr. Gould discusses the reasons (transcripts are available at the pod).

I often, always, talk about confirmation bias in connection with military sexual assault investigations, through the 32, and through the referral process, and potentially at trial. Dr. Gould calls it “tunnel vision.”  In another portion of the pod Dr. Gould addresses discovery failures.

Center for Prosecutor Integrity.

The Center for Prosecutor Integrity is the nation’s only organization with a sole focus on enhancing prosecutorial ethics. The goals of the Center are to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions.

CPI sponsors the Registry of Prosecutorial Misconduct, supports media efforts, and partners with other groups to achieve policy reforms at the state and national levels. As a public interest law initiative, CPI does not accept individual cases.

Congress, commanders, and others ignore the effects of false sexual assault allegations.  They don’t fit the meme.  They are quite willing and happy to ignore such happenings or possible happenings.

16-year-old commits suicide after being falsely branded a rapist by drug-dealing gang.  A schoolboy hanged himself after he was falsely branded a rapist by fellow pupils after pulling out of a playground drug dealing racket, an inquest heard.

Have wrongly military accused’s committed suicide as a result of false allegations – I know of at least one, and one possible one.  My colleagues know of others.

I’ve not heard the awesome power of de novo review discussed this way.

On the basis of the entire record we cannot find that the court was wrong as a matter of law in finding an intention to desert. We are, however, by Article 66(c) of the Code privileged to say that we differ from the court in finding as a fact whether such intention existed. We determine that it did not.

United States v. Bolish, 12 C.M.R. 649 (C.G.C.M.R. 1953).

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