Court-Martial Trial Practice

How often does the prosecution proffer evidence and then when challenged make a formulaic and broad talismanic incantation of “admissibility.”   (Or according to the M-W dictionary: trying to produce a miracle by incantation.)

When the defense objects to certain evidence or testimony it is perfectly proper for the prosecution to say Mil. R. Evid. 404(b), or 803(1).  However, you must close them down after that, in a members case.  Don’t let them get past the initial proper incantation by arguing admissibility in front of the members.  You just let them put one over and make the point to the members even if the judge rules in your favor.  Don’t forget that it’s almost impossible to throw a skunk into the members box and tell them not to smell it.

So what happens when the military judge then asks for reasons the evidence or testimony is admissible.  Commonly the prosecutor will continue the talismanic incantation, for example:  “it’s evidence of intent or motive,” or “it’s a excited utterance.”  Maybe.  But they have to do more and you should make them do more than recite the rule.  Make them be specific on how the evidence makes the point, how it is relevant, and how it is not barred by application of Mil. R. Evid. 403.  Specificity is required.

Clarifying the Implied Bias Doctrine: Bringing Greater Certainty to the Loir Dire Process in the Military Justice System

It is not unusual for possessors and receivers of CP to be placed on probation as the result of a state court conviction.  Here Professor Berman reports: 

Regular readers are familiar with persistent complaints about the severity of the federal child porn guidelines and the frequency with which federal judges impose below-guideline sentences in cases involving "mere" downloading of illegal images.  But it still seems rare for a federal child porn offender, especially one who possessed a lot of illegal images, gets a federal sentence of probation.  This local New Jersey story, however, seems to report on such a sentence:

Professor Colin Miller has a good piece on fingerprint evidence.

Professor Miller recommends that:

if you are looking for a solid case that delves into many of these topics, you could do a lot worse than the recent opinion of the United States District Court for the Southern District of California in United States v. Love, 2011 WL 2173644 (S.D. Cal. 2011).

After a quick trip behind the barricades at RLSO San Diego a few catch up items.  BTW, as much as I complain how difficult it is to use the locked down courtroom at San Diego, the funniest bit this time was to see that the TC had the same problem.  Twice during our 39(a) the TC had to leave to do something for the judge.  On his return the TC had to knock, just like us, to gain entry into the courtroom.  I guess if the accused and his counsel, and the prosecutor can’t get in the court-room, that might be an explanation for less court-martials.  Anyway.

Travel Wires reports:  Foster, 37, is a Marine Corps gunnery sergeant and a military policeman. He says he may even be a better cop for his ordeal – spending nearly a decade in Leavenworth for a crime he didn’t commit.

Boise Weekly reports:  Pfc. Andrew Holmes of Boise, accused of war crimes while stationed in Afghanistan, has been granted a conditional pre-trial release from his confinement at Joint Base Lewis-McChord outside of Seattle. Holmes was granted the release late Thursday, requiring him to wear an electronic ankle bracelet and to not leave the state of Washington.

. . .  in more ways than one.

Military.com reports that:  The commanding officer of the fast attack submarine USS Connecticut was fired Monday after an investigation into the mishandling of classified information.

Navy Times reports that:  The commanding officer of the medium-endurance cutter Diligence was fired Tuesday by the Coast Guard’s Atlantic Area commander, who cited a loss in confidence in the officer’s ability to command related to a grounding last month, according to a news release.

Pilot online is reporting that the XO, USS DWIGHT D. EISENHOWER, has been to flag mast for an inappropriate relationship and has been relieved for cause.

CBS Miami reports that the accused and appellant in United States v. Seldes has been granted a licence to practice medicine.

Navy and Marine Corps Times are reporting that:  A Marine corporal accused of stabbing another corporal to death in Afghanistan last summer has been charged with second-degree murder and manslaughter, Marine officials said.  Cpl. William C. Dalton will face general a court-martial at Camp Lejeune, N.C., beginning June 16[.]

Professor Colin Miller discusses an interesting situation of lip reading and lip reading testimony as an issue under Crawford v. Washington.

Joint Base Charleston is reporting: 

Airman 1st Class Dustin Miller from the 628th Security Forces Squadron was found guilty at a General Court-Martial of three charges; Article 80 of the Uniform Code of Military Justice for attempted murder, Article 128 of the UCMJ for assault with a loaded firearm and Article 134 of the UCMJ for attempting to commit murder by assault. He was sentenced to a dishonorable discharge, confinement for 11 years, total forfeiture of all pay and allowances, and a reduction to E-1.
Staff Sgt. Adam Ruyle from the 437th Aircraft Maintenance Squadron was found guilty at a Special Court-Martial of three charges; Article 86 of the UCMJ for Absent Without Leave, Article 92 of the UCMJ for misuse of his Government Travel Card and Article 107 of the UCMJ for making a false official statement. He was sentenced to six months confinement, reduction to E-1, and a bad conduct discharge.