Court-Martial Trial Practice Blog

Depositions

July 20, 2012 | The Law Office of Philip D. Cave

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

b‘ware

July 20, 2012 | The Law Office of Philip D. Cave

The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

We are getting there

July 19, 2012 | The Law Office of Philip D. Cave

Cloud computing, the cloud, saving trees.

Here’s a link to the new Florida court rules for service of documents on counsel in a case.

The next step shouldn’t be much harder – allowing public access to filings in the same was as PACER.

I object

July 19, 2012 | The Law Office of Philip D. Cave

We don’t have this come up too often because of the nature of our clients.

Luce v. United States, 469 U.S. 38 (1984), held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial.

On a different point entirely, don’t rely on old westerns like “High Noon” as a substitute for expert testimony on a relevant point. (h/t federalevidence.com)

Do you trust me yet

July 11, 2012 | The Law Office of Philip D. Cave

We all know that a defense counsel (and for that matter trial counsel) should not trust what comes out of a military drug lab, USACIL, or DCFL – I won’t rehash the problems over the years – which may well be continuing. While the problems have been substantial, DOD and courts have been quite happy to rely on the various “forensic” labs to put or keep people in jail.

So, why does this surprise me.

“Review Found FBI Hair Analysis Flaws in 250 Cases, But DOJ Didn’t Inform Defendants and Public (does this sound like USACIL or what)” says the ABA Journal.

Mil. R. Evid. 412

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

Evidence of past false complaints of sexual offenses by an alleged victim of a sexual offense is not within the scope of this rule and is not objectionable when otherwise admissible.

Appendix 22, p. A22-36, Manual for Courts-Martial, United States (2012).

And you think you have it hard

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

Pennsylvania Public Defenders Rebel Against Crushing Caseloads.

[Washington] Supreme Court Adopts Standards for Indigent Defense: Case Limit Guidelines Effective in 2013.

More on shaken baby syndrome

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

SBS has been subject to significant criticism, so the “experts” have changed it’s name to Abusive Head Trauma. But does a name change mean that the “syndrome” or “diagnosis” is any more real?

Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right

Keith A. Findley University of Wisconsin Law School

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

How is Fosler faring post-CAAF

July 7, 2012 | The Law Office of Philip D. Cave

In Faison v. Belcher, a prisoner at the USDB sought to get the federal district court in Kansas to grant a habeas for several issues, including a Fosler issue.