Articles Posted in Worth the Read

Frederic Bloom, Character Flaws.  89 U. COLORADO L. REV. 1101 (2018).

Character evidence doctrine is infected by error. It is riddled with a set of pervasive mistakes and misconceptions—a group of gaffes and glitches involving Rule 404(b)’s “other purposes” (like intent, absence of accident, and plan) that might be called “character flaws.” This Essay identifies and investigates those flaws through the lens of a single, sensational case: United States v. Henthorn. By itself, Henthorn is a tale worth telling—an astonishing story of danger and deceit, malice and murder. But Henthorn is more than just a stunning story. It is also an example and an opportunity, a chance to consider character flaws in evidence law more broadly and an occasion to remedy them too. This Essay makes use of that occasion. It critically examines Henthorn: the arguments offered, the tactics deployed, the opinions written, the evidence used. And it frames Henthorn as a window into contemporary character flaws more broadly, hoping to prompt an overdue conversation, both in the courtroom and in the classroom, about the flaws that now infect character evidence.

Heather Ellis Cucolo and Michael L. Perlin, “The Strings in the Books Ain’t Pulled and Persuaded”: How the Use of Improper Statistics and Unverified Data Corrupts the Judicial Process in Sex Offender Cases.

As for SPC KP [a witness to the alleged MSA], our doubts about her testimony are many. First, several witnesses shared their low opinion of SPC KP’s character for truthfulness, as well as SPC KP’s low reputation within the unit on this important trait. Second, SPC KP had a motive to fabricate, as the trauma she claimed to have suffered from witnessing this event were key factors in getting an exception to policy in order to obtain a service animal and achieve her longstanding wish to move out of the barracks. Third, her testimony was impeached in several instances by other witnesses. For example, SPC KP claimed that the morning after the incident, she told PFC HM everything she had witnessed in the bedroom. That is, what she related in her trial testimony was what she reported to PFC HM the morning after the party. By contrast, PFC HM was clear in her testimony that both SPC KP and PFC LC reported the next morning only that appellant was on top of PFC HM. Nothing more. In fact, when the incident was reported a few months later, PFC LC was surprised by the additional details related to SHARP personnel by SPC KP. In another example from the trial, SPC KP denied asking SPC MF about his Article 32 testimony, a denial later contradicted at trial by PFC MF. For these and other reasons, we find SPC KP’s testimony was not credible.

United States v. Sanders, ACCA 2018.

The “trauma” was from–

Comment on Carissa Byrne Hessick, The Expansion of CP Law.  21 NEW CRIM. L. REV. (coming soon).

As military defense counsel, we have had to deal with and address the “expansion” of CP into what is often referred to as erotica.  Ms. Hessick notes an expansion of CP law to cover possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.

These prosecutions have expanded the definition of the term CP well beyond its initial meaning. What is more, they signal that CP laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

This Court unequivocally endorses the Supreme Court’s observation that “[f]ederal courts have an independent interest in ensuring that … legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).

United States v. Boyce, 76 M.J. 242, 253 (C.A.A.F. 2017).

The NMCCA has decided United States v. Brown — one of the questions:

Once the MCIO gets a “confession” or DNA in a sexual assault case, it seems, they stop investigating–bad.

Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.

Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk.  OK, where are the bar receipts?  No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available.  Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts.  The receipt tells you a number of things:  time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?)  Or, how about the video from the base entry point when the CW walks or drives or is driven on base?  Is it possible the video helps show how unintoxicated the CW was or wasn’t?  CCTV?  Remember, the MCIO doesn’t usually care about this stuff.

(cleaned up)

Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference.  Ah, but it continues to be a daily tool–for motions, briefs, and such.  I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.

One of the common questions is how best to quote, be it an appellate decision or a law journal.  Jack Metzler proposes a solution,  In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.

Those of us who engage with discharge reviews, correction boards, and federal court on behalf of service-members are used to reading about the presumption of regularity–it’s a regular defense by the gubmint to an applicants claim.

“I was improperly discharged.”

A: “We can’t find any record of your discharge.  Because of that we consider you properly discharged, because we presume the command did it right.  No, we can’t and don’t have to explain why there is no record of this.”

“An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.  This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.”  The accused has the burden to establish that the order is not lawful.  Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972).  Indeed, a professional military institution could not otherwise function without a service member having a duty to obey lawful orders.

 United States v. Kisala, 64 M.J. 50, 52, n.5 (C.A.A.F. 2006).

A piece at JustSecurity (WTR) begins: