Court-Martial Trial Practice

Yes, I got my copy of the NIJ Journal, so here’s another interesting article available on the web.  Solving the Problem of Untested Evidence in Sexual Assaults, by Nancy Ritter.

The National Institute of Justice has now put The Fingerprint Sourcebook, by the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST), et al., March 2011, Chapters 1, 4 – 8,  10 – 13, and 14 – 15 on line.  It appears that the remaining chapters will be published “in stages.”

I was particularly interested in Chapter 15: Special Abilities and Vulnerabilities in Forensic Expertise (pdf, 24 pages), By Tom Busey and Itiel Dror, which concludes:

In a post-Daubert environment, there is a need for additional research in the field of friction ridge science. Certainly any science wishes to expand the depth and breadth of knowledge of the discipline. We in the fingerprint expert community must attempt to challenge and study further the laws and theories that comprise our discipline.  Specifically, we must focus our efforts to reevaluate the basic tenets of individualizing friction ridges using modern and enhanced technologies, which were not available in Galton’s day. There are many unanswered or partially answered questions regarding the individuality of friction ridge skin and the forensic comparison of friction ridge impressions.  Although significant advances have been made, many of them in just the last two decades, this is really only the tip of the iceberg. With the advent of newer, more powerful technologies, software, and computer algorithms, we have opportunities to explore our vast fingerprint databases and quickly growing palmprint databases.  We need to assess and quantify the full extent of variation of friction ridge features, starting with perhaps the most basic (patterns and minutiae—if one can truly call this “basic”) and then attempt to assess and quantify other features such as creases, scars, edge shapes, and so forth.  

Military.com reports:

Secretary of the Navy Ray Mabus said April 27 that the spate of firings of senior officers involves only a small portion of the commanding officer corps and doesn’t hint at a wider problem across the fleet. . . . [this fosters accountability] . . . “Since 2005, we have dismissed less than 1 percent of our commanding officers[.]

Here’s another one reported by Navy Times.

The National Law Journal has this piece:  Head in the sand over prosecutorial misconduct.

The Supreme Court has sent a disturbing message that it just doesn’t realize there is a serious problem infecting our criminal justice system.

EvidenceProf blog reports on Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).

It is not very often that a defendant claims that a criminal prosecution violated both his Second Amendment and Sixth Amendment rights, but that was exactly the case in Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).

Here’s the confrontation point.

Yes, I know we’re all tired about hearing of this case, but:

Washington Wire reports:

The White House today posted on its blog a copy of President Barack Obama’slong form birth certificate from the State of Hawaii, along with copies of an April 22, 2011 letter from Mr. Obama’s lawyer requesting that the Hawaii State Department of Health waive its policy of releasing only the short form birth certificate.

Outside the Wire reports:  A spate of high-profile violent crimes committed by Fort Drum, N.Y. soldiers,  is being blamed on an increase in population and not combat stress, the Watertown Times reports.

Navy Times reports:  Naval Medical Center San Diego admitted 15 sailors over a five-month period last year for use of a synthetic drug that mimics marijuana, The San Diego Union-Tribune reported Tuesday.  Side effects of the drug often known as spice include hallucinations, paranoia and confusion that can become debilitating, doctors said, adding that symptoms can often last days.

Stars & Stripes reports that Mr. Galligan will meet with the commander at Fort Hood in May to discuss a non-capital referral.

Here is the January edition of Army Lawyer.

Simplifying Discovery and Production: Using Easy Frameworks to Evaluate the 2009 Term of Cases

Researching Current and Historical Legislation Using THOMAS

CAAF has issued its opinion in United States v. Beaty.

Basically the court holds that the maximum punishment for possession of child pornography in cartoon, virtual, or anything other than real life is four months and a similar term in forfeitures.  The federal statute does not criminalize such conduct therefore there’s no federal punishment for the “offense.”  Thus you have to punish as a general disorder or neglect under Article 134, UCMJ.

Stand by for some statutory or regulatory “fix.”

When arguing for admission of MRE412 evidence, counsel should make sure the MJ knows she can give a limiting instruction.  And for that matter trial counsel should definitely ask for one.  The appellate courts regularly approve of limiting instructions when it’s the accused having bad evidence or erroneous evidence introduced against them.  See e.g. United States v. Dacosta, 63 M.J. 575 (A. Ct. Crim. App. 2006) for a discussion of limiting instructions regarding MRE 413.   See also, United States v. Morris, 47 M.J. 695 (N-M Ct. Crim. App. 1997)(military judge eliminated any possible prejudice by giving a limiting instruction that the members could not use this admission as evidence that the appellant had a criminal disposition or was a bad person.).  There is no reason a limiting instruction cannot aid in admitting relevant evidence.

See e.g., United States v. Tiller, 41 M.J. 823, 827 (N.M.C.M.R. 1995):

This evidence, if admitted, would not be unduly prejudicial under Mil. R. Evid. 412(c)(3), or Mil. R. Evid. 403, with a proper limiting instruction to the members. United States v. Dorsey, 16 M.J. [1 (C.M.A. 1983] at 7-8 (holding that proper limiting instruction would protect against unfair prejudice and also questioning use of a balancing test if the evidence is determined to be constitutionally required).