Court-Martial Trial Practice

In Mil. R. Evid. 1102, any amendment to the Federal Rules of Evidence come into effect in courts-martial 18 months after their effective date, absent action to the contrary.  I have not seen anything on Fed. R. Evid. 502(d), within the Joint Service Committee or other DoD organ.  The federal rule becomes effective 1 December 2011.

A piece in the New York Law Journal has this comment:

Enacted in 2008, Federal Rule of Evidence 502(d) permits a federal court to order that a "privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other Federal or State proceeding.

In United States v. Olguin ___ F.3d ___ (5th Cir. 2011), the court determined that certified business records were properly admitted where the documents had been provided the defense about six months before trial and the prosecution gave written notice five days before trial of the intent to offer under Fed. R. Evid. 902(11).

Thanx, federalevidencereview blog.

Many Navy bulkheads have that stuck up somewhere in jest.

But, as Professor Berman reports, Salon has a piece about a new book authored by Peter Moskos, “In Defense of Flogging.”

Navy Times reports: An officer fired from command of a mine countermeasures ship two years ago after a bruising inspection has won an appeal, a Navy spokeswoman confirmed, in what might be the first case in decades of a firing being overturned.

North County Times is reporting the indefinite delay of United States v. Wuterich, due to “wrangling” over lawyers.

Washington Blade reports:  A Senate defense panel late Thursday approved major Pentagon budget legislation lacking anti-gay provisions found in the House version of the bill, although questions remain on whether amendments related to same-sex marriage or “Don’t Ask, Don’t Tell” could come up on the Senate floor.  Additionally, the Senate version of the fiscal year 2012 defense authorization bill has language repealing Article 125 of the Uniform Code of Military Justice — the long-standing military law classifying consensual sodomy for both gay and straight service members as a crime.

MetroWeekly reports:  According to Servicemembers United, which issued a news release about the [Senate] bill this morning, the bill "contains none of the reactionary and distracting amendments related to the repeal of the ‘Don’t Ask, Don’t Tell’ law that were inserted into the House version of the bill, and also would repeal the outdated and widely ignored prohibition on sodomy between consenting adults."

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.