Court-Martial Trial Practice

Thanks to Volokh Conspiracy here is an important case relevant to “searches” of computers.

We hold that the act of Doe’s decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that (1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.

First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.

From time to time I’ve referred to federal jury instructions to help craft a “novel” members instruction.  Sometimes you have to refer to federal instructions for other reasons.  For example, I just completed a litigated “wire fraud” case, 18 U. S. Code Sec. 1343, where we needed to figure out the elements for assimilation under Article 134(3).

Here is a link through federalevidence blog that should help.

Here is an interesting case from the DC Court of Appeals – Pettus v. United States  – about the admissibility of handwriting testimony, and a link to a blog item.

H/T Crime&ConsequencesBlog

NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton.  It’s unpublished but worth the read.

Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

• A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
• A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
•   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
• Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.

There appears to be a split shaping up between the circuits over the use of a surrogate to introduce autopsy reports.  Thanks to federalevidence.com here are the basics.

[Are] autopsy reports are admissible under the Confrontation Clause. The First Circuit has held that autopsy reports may be admitted without the testimony of the report author consistent with the Confrontation Clause. See United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (autopsy reports as public reports were “not subject to the strictures of the Confrontation Clause”) [Note, case decided before Melendez-Diaz]; United States v. De La Cruz, 514 F.3d 121, 133-34 (1st Cir. 2008) [n.1] (“An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford.”), cert. denied, 129 S.Ct. 2858 (2009); see also First Circuit Identifies And Discusses Crawford Confrontation Clause Open Issues.

With that FE provides the case that sets the conflict, and it’s a surrogate case.

Oooops, I meant H.M. the Queen v. Delisle.

The Winnipeg Free Press reports on a cross-border military justice case.  It begins,

Putting an accused navy spy on trial represents a potential legal and intelligence nightmare for the . . . government, one where it will have to resist the temptation to dispense justice in secret, say experts.

Registration for the Virginia CLE 42nd Criminal Law Seminar, is now online.  You can attend live on 3 or 10 February.  Note, VA will begin requiring a number of hours be live.  They are cutting back on getting the full 12 online.

The USCAAF Judicial Conference is scheduled for 7 – 8 March 2012.  Hopefully they will give the option of receiving hard copies of handouts so that VA lawyers can get CLE credit.   The VA Bar has been giving problems over the last few years about credit for the conference based on a lack of handouts.

The NMCCA continues to pump out the Fosler cases with affirmances.

But today there’s an interesting opinion in a urinalysis case.  United States v. Alicea  It’s unpublished. It’s about the use of documents and testimony from an expert about a urine sample tested by the Navy drug lab.

NMCCA found the military judge abused his discretion, and the error was not harmless beyond reasonable doubt.

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights.

She has this interesting post, "Why Can’t Jurors Distinguish “Knowing” From “Reckless” Misconduct?”

Recently, The National Law Journal carried a story about an important gap that has emerged in jurors’ ability to understand the criminal law.  According to the original study, described in the article “Sorting Guilty Minds” in the NYU Law Review, jurors have a difficult time distinguishing between two of the culpable mental states under which perpetrators commit crimes:  “knowledge” and “recklessness.”  In this column, I will offer an account of jurors’ difficulties that locates the problem in the ambiguity of the criminal law itself, rather than in the thinking processes of fact-finders.