Court-Martial Trial Practice

Quite a few cases, especially the sexual assault ones arriving recently have involved text and chat messages as potential evidence against the client.

As is to be expected, most of the time the investigators do not seize and clone the phone to preserve evidence (although I am dealing with one CID office at Fort Lee that has done that with one of several phones).  This is a failure to investigate, and as always is to be expected.  What they usually do is photograph the “relevant” by their definition texts on the phone screen and nothing more.

Keep in mind that Mil. R. Evid. 106 AND 304(h)(2) apply to these texts and chats.

Warrant for DNA failed to show probable cause because it was based on mere conclusions. On remand, however, the state is free to use inevitable discovery to validate it. State v. Jenkins, 2012 S.C. App. LEXIS 84 (March 28, 2012):

Nevertheless, the State argues that because this case involves a sex crime, the magistrate could reasonably have inferred the victim was the source of the information. We disagree. The law does not allow the State to justify a bodily intrusion on the possibility that a magistrate made a correct inference as to the source of the information in the affidavit. Rather, "[m]ere conclusory statements which give the magistrate no basis to make a judgment regarding probable cause are insufficient." Smith, 301 S.C. at 373, 392 S.E.2d at 183. Moreover, the complete absence of a source for any of the information makes a variety of scenarios possible. For example, the detective could have pieced together the information from other officers, the victim’s neighbors, or even an anonymous tip. This is precisely what the law forbids a magistrate from doing. The magistrate’s "action cannot be a mere ratification of the bare conclusions of others." Id. (quoting Gates, 462 U.S. at 239).

Note: One of the benefits of knowing the Fourth Amendment is that you don’t file pointless motions to suppress. Most of the time, 95% of the time, the warrant or search is valid. I filed my first motion to suppress in over a year this week on the same ground: The officer alleged it was his opinion evidence would be found in the place to be search without any effort to show probable cause connecting it to the crime under investigation. And, warrants failing on this ground get no good faith exception under Leon’s third ground.

Jessica D. Gabel & Ashley D. Champion, Regulating the Science of Forensic Evidence: A Broken System Requires a New Federal Agency, 19 Texas L. Rev. See Also 19 (2011).

Science has its watershed moments.  In February 2009, the National Academy of Sciences released its much-anticipated diagnosis of and prescription for the problems plaguing the practice of forensic science (NAS Report).   The NAS Report confirmed the low but steady noise that had been creeping in the criminal justice system for more than a decade—with the exception of DNA evidence, much of what is presented as forensic science is not really science at all.  Instead, a large segment of the high-tech pageantry seen on television, and now expected and employed in court, would fail to clear even the lowest hurdles of stringent scientific inquiry.  The NAS Report concluded that forensic science overpromises but underwhelms although such science is routinely used to demonstrate the certainty of a person’s guilt by authoritatively matching evidence from the crime scene or victim to the suspect.

Here is an interesting book.

Here is a review that’s better than I could write.  The book is not about courts-martial.  There are several books that are good reads on military justice.  Here are a couple.

On 22 March 2012, CAAF made summary disposition of United States v. Sobenes.

No. 11-0566/MC. U.S. v. Alan D. SOBENES. CCA 201000381. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated "the adjudged sentence is approved and will be executed." Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority’s action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in the Manual for Courts-Martial, United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised. See United States v. Karras, 70 M.J. 25 (C.A.A.F. 2011); United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition is hereby granted, and that, subject to the above, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

For the SJA a reminder.

The Hamdaniyah related case of United States v. Hutchins ends, at NMCCA at least.

From time to time I raise a “constellation of error” in an appellate brief.  Otherwise known as the doctrine of cumulative error.  See United States v. Gray , 51 M.J. 1, 61 (C.A.A.F. 1999).

We hold, therefore, that this case “falls . . . within the ambit of the doctrine of cumulative error — under which a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.” United States v. Walters, 4 U.S.C.M.A. 617, 635, 16 C.M.R. 191, 209 (1954). This Court will not lightly find reversible error in any case; however, we have been constrained on occasion to reverse a conviction because of the effect of cumulative errors found in the record of trial. E.g., United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969); United States v. Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952).

United States v. Banks, 36 M.J. 150, 170–71 (C.M.A. 1992).

Various rules in the R.C.M. and the Military Rules of Evidence require notice to the other side.

Some rules are explicit, for example Mil. R. Evid. 412 requires notice no less than five days “before entry of pleas”, unless the military judge sets an earlier time.  Mil. R. Evid. 412(c)(1)(A), or see Mil. R. Evid. 413(b).  Other rules are less rigid in when notice must be given.  For example Mil. R. Evid. 902(11) or 609(b) , require notice with enough time for the opposing counsel to have “a fair opportunity to contest the use of the evidence.”

Included with the opportunity to contest is time to investigate.