Court-Martial Trial Practice Blog
Now the Iowa primary is done, we are off to the races for a new election year.
Here’s a reminder, from Stars & Stripes, that politicking in uniform is not allowed.
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Evidence issues for 2012
Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.
- Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions
- Confrontation Clause: More Notice and Demand Rules?
- Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations
- Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause
- Circuit Split: Admission Of Pre-Miranda Silence
- Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?
- More Judicial Criticism of the “Inextricable Intertwinement" Theory
- Rule Amendments: “Restyling” Federal Rules of Evidence
- Pending Rule Amendment: FRE 803(10) – Absence of Public Record
- Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings
On item 8., which will depend on how the President “adopts” the restyling. Interesting that there may be issues surrounding implementation of the restyled rules.
The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.
Change in Article 32 discovery
Because the President has signed the National Defense Authorization Act, subpeona’s duce tecum can now be issued for production of documents at an Article 32, UCMJ, hearing. Section 542 amends Article 47, UCMJ. The relevant piece is:
(1) in subsection (a)–
(A) in paragraph (1), by striking “board;” and inserting “board, or has been duly issued a subpeona duces tecum for an investigation pursuant to section 832(b) of this title (article 32(b);” and . . .
In the CCA’s
NMCCA has had a “disparity” week.
United States v. Ochoa, is a case addressing a not infrequent issue, sentence/disposition “disparity” between co-accuseds.
[A]ppellant’s claim does raise the issue of differences in initial disposition of co-accused, an issue that
can be viewed by this court in determining sentence appropriateness under Article 66(c), Uniform Code of Military Justice. Noble, 50 M.J. at 295. We find the nonjudicial disposition of LCpl Lopez’s and LCpl Ortega’s charges to be closely related to the appellant’s case. Both of these Marines were directly involved in some of the frauds for which the appellant was sentenced. When cases are closely related, yet result in widely disparate dispositions, we must decide whether the disparity results from good and cogent reasons. United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994).
In the CAAF
They slipped one through. Last Thursday CAAF granted a petition for a non Fosler case.
No. 12-0053/AR. U.S. v. Richard L. EASTON. CCA 20080640. Review granted on the following issue:
WHETHER THE ARMY COURT ERRED IN HOLDING THE APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY BECAUSE JEOPARDY DID NOT ATTACH AND EVEN IF IT DID, MANIFEST NECESSITY JUSTIFIED THE CONVENING AUTHORITY’S DECISION TO WITHDRAW CHARGES.
In the Supremes
SCOTUSBlog has put up the courts argument schedule for February and March 2012. There are a couple of cases that may have military practice interest.
Wed., Feb. 22:
11-210 — U.S. v. Alvarez – constitutionality of Stolen Valor Act’s criminalization of false claims of receiving a military medal or decoration
My alibi is . . .
ACC: Sir, I was at the gym, so I wasn’t where this happened.
TC: Objection your honor, we’ve received no notice under Mil. R. Evid. 701.
MJ: Sustained.
Up periscope!
Hometown Annapolis reports: Evidence against a midshipman charged with raping a classmate was strong enough to warrant a court-martial, Naval Academy officials said Tuesday.
Military.com reports on a rather lugubrious incident at Fort Lee. The Air Force is investigating a photo that appeared online depicting Airmen posing with an open coffin that contains another Airman playing dead with a noose around his neck, the Air Force Times newspaper reported Wednesday.
Fort Bragg Patch reports: The Army’s Criminal Investigation Command removed explosives and military weapons from the Fayetteville soldier’s home [while serving a domestic violence protective order.
Do you use your office
computer to blog, or for other purposes?
There is an interesting case going on in the Ninth, United States v. Nosal. The case was recently reconsidered en banc.
Howard Bashman at How Appealing quotes an article:
In the Supremes-Confrontation
The ever excellent Federal Evidence Review has this nice summary and analysis of White v. Illinois.
While here they report:
Vacating cocaine distribution conviction and remanding because defendant’s trial included expert testimony by a witness about the contents of the drug identification analysis reported by a non-testifying expert, violating the Confrontation Clause; as the expert’s trial testimony "simply parroted the conclusion" of the non-testifying expert, the testifying expert’s "testimony amounted to no more than the prohibited transmission of testimonial hearsay," in United States v. Ramos-Gonzlez, __ F.3d __ (1st Cir. Dec. 9, 2011) (No. 10–1318).