Court-Martial Trial Practice

I have previously posted about “context testimony” usually from law enforcement officers to set the stage for why an investigation began.  While not exactly addressing this issue, NMCCA has come close and has a useful discussion of how similar context evidence is not admissible.

In United States v. Combest (an unpublished op.) the court sets the facts.

Soon after arriving home [from apparently being assaulted], DW told her sister, AH, that she had been sexually assaulted by the appellant.  AH then called the police.  It is DW’s statement to AH that gives rise to the appellant’s assignment of error.

The prosecution, often routinely, denies or fails to answer requests for derogatory information in the personnel records of law enforcement personnel involved in a case.  Some cite United States v. Henthorn (note the NMCCA, in at least one court order, has noted that no military appellate court has ruled that Henthorn states the applicable rule).

Here, courtesy of fourthamendment.com is an interesting federal court case.

The right to compulsory production of the searching officer’s personnel file that was specific only for potential impeachment material would be enforced under United States v. Nixon, Rule 17(c) [Fed. R. Crim. Pro.], and Colorado’s privacy standards (People v. Spykstra, 234 P.3d 662, 670 (Colo. 2010)). United States v. Neal, Civil Action No. 11-cr-00163-WJM, 2011 U.S. Dist. LEXIS 92151 (D. Colo. August 18, 2011):

So, you have a prosecution witness who testifies to something on the witness stand which you know is wrong and for which you have contradictory evidence.  Let’s also assume for the moment that the wrong testimony is about something relevant to the case and you are not in a situation where you can impeach through prior inconsistent statements.  Federalevidence blog has a case discussing impeachment through contradiction.

Drawing the line between evidence that probes the character and conduct of a witness through use of "specific incidents" of misconduct under FRE 608(b) and evidence aimed at directly contradicting the witness’s contentions, can be difficult to draw. A recent case of the Third Circuit explored this difference between evidence excludable under FRE 608(b) and evidence admitted as evidence of "impeachment by contradiction." Admission of the impeachment by contradiction evidence is subject to limits, not from FRE 608(b) constraints, but rather by FRE 403’s balance of the probative value against the possible prejudicial impacts of the evidence.

Impeachment by contradiction allows “courts to admit extrinsic evidence that specific testimony is false, because contradicted by other evidence,” citing to United States v. Castillo, 181 F.3d 1129, 1132–33 (9th Cir. 1999).  Impeachment by contradiction is “a means of policing the defendant’s obligation to speak the truth in response to proper questions,” citing to United States v. Gilmore, 553 F.3d 266, 271 (3d Cir.2009).

Navy Times reports:  The former executive officer of the Mayport, Fla.-based cruiser Gettysburg received non-judicial punishment for sexual misconduct and a likely forced retirement at an admiral’s mast hearing in Norfolk Monday morning, the Navy announced.

Marine Corps Times reports on Mids spicing up life.   On June 13, four Naval Academy midshipmen snuck aboard the decommissioned carrier. The mids ascended through the empty carrier, decommissioned 17 years ago, until they reached the pilothouse. Saratoga is moored in Coddington Cove, on a pier at Naval Station Newport, R.I., which the mids were visiting for their summer cruise.  And that’s when they decided to take things, according to academy spokesman Lt. Cmdr. William Marks. Gauges. A gyrocompass. Display dials.

Navy Times reports:  When the Navy discovered an exam-cheating ring aboard one of its submarines, it swiftly fired the commanding officer and kicked off 10 percent of the crew

Nope, not yet, but maybe.  Under Mil. R. Evid. 1102, a federal rule of evidence becomes effective in courts-martial 18 months after the federal rule goes into effect, unless the President decides otherwise.  So,

Federalevidence.com blog reports the status of a change to Fed. R. Evid. 803(10), which is intended to address some “confrontation” problems.  I doubt very much the President will object to this rule because it helps the government.  However, there is an interesting part that may be objectionable to the JSC.

(B) if the prosecutor in a criminal case intends to offer a certification, the prosecutor provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

Thanks to obamaconsipiracy.org here are some links and information about a new military-birther case?

Air Force Staff Sergeant Refusing Orders Until Obama’s Eligibility Dealt With

Did LTC Lakin and his case have an effect on other members of the military?  Maybe so.

I’m a proponent of restitution in cases where it may lead to a reduction in confinement or suspension of a punitive discharge.  I’m a proponent in cases even where there has been no ‘unjust enrichment.’ 

The CGCCA in United States v. Scott addresses restitution in the context of when restitution should be made and what happens if not timely made. 

A couple of thoughts.

NMCCA has issued an opinion in United States v. Saracoglu.  NMCCA specified the issue.  The related to the MJ’s denial of a UCI motion based on:

Captain (Capt) Hillary, Headquarters and Service (H&S) Company Commander for Weapons Field Training Battalion, held a Friday morning formation.  The formation included two platoons of enlisted Marines, including the appellant, and a few officers.  Formations of this sort were held every Friday morning as a means of disseminating information.  At this particular formation, Capt Hillary read a newspaper article from the San Diego Union Tribune that discussed the recent court-martial of Private Bradley, a member of H&S company.  The article stated that Private Bradley had pled guilty to “stealing truckloads of spent ammunition casings from the base firing range where he worked and selling them as scrap metal, raking in nearly $31,000.”  After reporting the sentence awarded, the article went on to state that Bradley’s “alleged accomplice, Pvt. Anthony Saracoglu, is awaiting trial.”

Private Saracoglu was in the formation.

Here is an interesting CAAF grant on an Article 120 issue.  The most interesting issue is Issue III.

Wednesday, August 10, 2011

ORDERS GRANTING PETITION FOR REVIEW

CAAF has decided United States v. Fosler, and potentially the “trailer park,” alluded to by CAAFLog.

The actual application to the other cases may not be so simple.

In a contested case in which Appellant challenged the charge and specification at trial, the inclusion of
“Article 134” in the charge does not imply the terminal element.