Court-Martial Trial Practice

As we all know the military does not have the nolo contendre or Alford plea.  Thanks to Prof. Berman at Sentencing Law & Policy, here is an intriguing study.  If you go back many years you will see reflections of the Milgram experiments, and the other experiments that turned college students into jailors and prisoners.  The Milgram experiment on obedience to authority figures was a series of notable social psychology experiments conducted by Yale University psychologist Stanley Milgram, which measured the willingness of study participants to obey an authority figure who instructed them to perform acts that conflicted with their personal conscience.  Some of this is the basis for false confession theory.

The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem

Lucian E. Dervan,

Southern Illinois University School of Law, Vanessa Edkins, Florida Institute of Technology
May 31, 2012

Abstract:
In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty.
That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. The study, conducted by the authors, involving dozens of college students, and taking place over several months, not only recreated the innocent defendant’s dilemma experienced by Taylor, but revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases.
Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit. This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.

Applying Crawford’s Confrontation Right in a Digital Age

Jeffrey Bellin

Southern Methodist University – Dedman School of Law
May 10, 2012

Abstract:
Much of the recent commentary on the Confrontation Clause focuses on the past. Commentators (and Supreme Court Justices) evaluate the evolving jurisprudence by comparing the confrontation right articulated in Crawford v. Washington and its progeny to the right that existed in 1791. This Symposium Essay shifts the focus to the future, exploring how the Supreme Court’s new Confrontation Clause jurisprudence will operate in a world where communication is increasingly informal and electronic.

The inability to remember in court, what about it?

If the witness testifies in court that the traffic light was green, and in a prior statement to police they said it was red.  That’s a prior inconsistent statement.  The witness may be impeached.  Asked the “on x to officer X, did you say red,” get the yes, move on; or get the no and offer the inconsistent statement.

But what if the witness says I don’t remember or I think it was amber, and you have a prior statement that the witness told the police officer it was red.

Paul C. Giannelli (Case Western Reserve University School of Law) has posted The 2009 NAS Forensic Science Report: A Literature Review (48 Crim. L. Bulletin 378 (2012)) on SSRN. Here is the abstract:

In February 2009, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (2009). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”
Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious deficiencies have been found in the forensic evidence used in criminal trials.” Both the Senate and the House held hearings, and a bill was introduced in Congress. In addition, the President appointed a committee on forensic science.
Several law schools held conferences on the report, and a number legal journals published symposia. Law review articles variously described the report as a “blockbuster,” “a watershed,” “a scathing critique,” “a milestone,” and “pioneering.” This essay briefly discusses some of these articles as well as aspects of the congressional hearings.

Here is a link to the new “order” requiring sexual assault cases to be disposed of at at least the O-6 level.

I have from time to time filed writs of error coram nobis, most recently in United States v. Graner.

Courtesy of CrimProfBlog here is an excellent case reviewing the writ of error coram nobis.  The court discusses the history of the writ and the three part test to considered.  Note they cite extensively to United States v. Denedo.

The  writ  of  error  coram  nobis  is  of  ancient  lineage, tracing its roots to sixteenth century English common law.  See Sawyer,  239  F.3d  at  37.  Its  original  purpose  was to  promote respect for the judicial process by enabling a court to correct technical  errors  in  a  final  judgment  previously  rendered.  See United States v. Denedo, 129  S. Ct.  2213,  2220 (2009).  In the United States, the office of the writ has expanded well beyond the reopening of a final judgment to correct technical errors.  See id.  In federal criminal cases, the writ is now available as a remedy of last resort for the correction of fundamental errors of fact or law.  Trenkler v. United States, 536 F.3d 85, 93 (1st Cir. 2008).

Not sure, that’s the conclusion of a study done by the National Research Council.

h/t Prof. Berman at Sentencing Law & Policy

You need to know about collateral effects of a court-martial conviction:

Voting

Firearms

The government wants to offer data from a computer or some other mechanical or recording device.

Can a NCIS agent testify about the contents.  No.  That violates the best evidence rule, Mil. R. Evid. 1001.

Courtesy of federalevidence.com here is a link for a recent case dealing with GPS information:

Not sure the value – but I’m tracking the impending release of this publication:

Apparently written for civilian attorney’s representing current or former military personnel, it may well have resources, ideas, and guidance for the military practitioner.

Major Evan Seamore, Chief of Military Justice for the U.S. Army Maneuver Center of Excellence, Fort Benning, GA, is in there in Chapter 13.