Court-Martial Trial Practice Blog

404(b) evidence of common scheme / plan

March 12, 2025 | The Law Office of Philip D. Cave

In United States v. Gree

The appellant contends that the military judge erred in admitting evidence of uncharged acts occurring seventeen months after the charged offenses to establish a common plan or scheme. He argues that this evidence was improperly admitted under Military Rule of Evidence (M.R.E.) 404(b) and that the judge did not conduct a proper M.R.E. 403 balancing test. Additionally, he asserts that the Air Force Court of Criminal Appeals (AFCCA) improperly substituted its reasoning by finding the evidence probative of wrongfulness and intent.

A. M.R.E. 404(b) Evidence

Don’t ask, don’t tell

March 12, 2025 | The Law Office of Philip D. Cave

The “Don’t Ask, Don’t Tell” (DADT) policy, enacted in 1993 under President Bill Clinton, represented a compromise allowing gay, lesbian, and bisexual individuals to serve in the U.S. military provided they did not disclose their sexual orientation. This policy prohibited military personnel from discriminating against or harassing closeted service members but mandated discharge for those who openly acknowledged their homosexuality. While intended as a progressive step, DADT effectively institutionalized secrecy, leading to the discharge of thousands solely based on their sexual orientation.

History

The repeal of DADT in 2011 allowed LGBTQ+ individuals to serve openly. However, many veterans discharged under DADT or prior policies continued to face challenges due to “other than honorable” discharge statuses, which impeded access to military benefits and affected civilian employment opportunities. Their discharge paperwork often explicitly cited their sexual orientation as the reason for separation, perpetuating stigma and discrimination post-service.

Military protective order violations

March 11, 2025 | The Law Office of Philip D. Cave

If you are accused of domestic violence, assault, or a sexual offense, then your commander will issue a Military Protective Order (MPO) prohibiting you from contacting the alleged victim.

As military defense counsel, we at Cave & Freeburg, LLP, have experience with MPOs and problems with them.

Also, being given an MPO may be the first sign that you are under investigation and what it is about. When that happens, as military defense lawyers we may be able to help with the MPO, and most importantly, with how the investigation and case proceeds.

Speedy court-martial appeal

March 11, 2025 | The Law Office of Philip D. Cave

A court-martial sentenced servicemember has the right to a speedy appeal. The right is based on the Constitution and on various interpretations of military appellate courts like the Army Court of Criminal Appeals.

The first and most command barrier to you or your loved one getting a speedy appeal is the failure of the local command to promptly and properly prepare the record of trial and send it t0 the proper Court of Criminal Appeals.

At Cave & Freeburg, LLP, we have experience with this problem. As military defense counsel we have developed a process to help speed up getting the record of trial completed. The process has worked in some cases, but that’s not guarantee for every case.

Transgender-plus

March 7, 2025 | The Law Office of Philip D. Cave

As military defense lawyers, we at Cave & Freeburg, LLP, along with Brenner Fissell, are representing transgender-plus servicemembers navigating the Trump executive orders.

A History of Transgender and Gender Dysphoria Persons in the U.S. Military

The history of transgender individuals and those experiencing gender dysphoria in the U.S. military has varied in periods of exclusion, evolving policies, legal challenges, and eventual inclusion efforts. The regulatory framework surrounding transgender military service has shifted based on changing presidential administrations, military directives, and judicial rulings.

SA victims have a right to counsel at an MCIO interrogation–accused’s don’t

February 21, 2025 | The Law Office of Philip D. Cave

In United States v. Deremer, 2025 CCA LEXIS 46, 2025 WL 427756 (N-M.Ct. Crim. App. 20 Feb. 2025), NMCCA decided that when an alleged victim has an SVC, the MCIO must notify the SVC of any interviews, especially those with intent to interrogate the “victim” about a false allegation.

The McOmber rule was based on the CMA’s interpretation of the right to counsel at the time. Following two Supreme Court decisions the Military Rules of Evidence were amended, and in United States v. Finch, McOmber was overruled because its constitutional basis was no longer good law and the Court of Appeals for the Armed Forces [CAAF] established that Mil. R. Evid. 305 governed Section 1044e and 10 U.S.C. § 1565b along with the accompanying DoDI and, in this case, the LSAM are congressional, departmental and service efforts to afford specific (and in some cases different or greater) rights to those in, or related to, the military who report that they are victims sexual assault.

United States v. Deremer, No. 202300205, 2025 CCA LEXIS 46, at *11-12 (N-M Ct. Crim. App. Feb. 7, 2025).

Post-trial delay

February 20, 2025 | The Law Office of Philip D. Cave

A convicted servicemember has the statutory and constitutional right to speedy review of their court-martial conviction. Unfortunately, the appellate cases show consistent problems in getting a record of the trial from the field to the court of criminal appeals. Here is a recent example.

In United States v. Lathrop, the Army Court of Criminal Appeals granted the Appellant 30 days confinement credit for such delay.

ACCA gives one month of sentence relief for a 211-day delay. The concurring judge would have also given the credit for a due process violation and would have granted 98 days of sentence relief versus the one-month granted.

Sexual harassment

January 26, 2025 | The Law Office of Philip D. Cave

Sexual harassment accusations in the military can have severe consequences, potentially leading to criminal charges and court-martial proceedings. As of January 26, 2022, sexual harassment became a specified offense under Article 134 of the Uniform Code of Military Justice (UCMJ). This change has significant implications for those accused and their defense strategies.

Understanding the Charges

To secure a conviction for sexual harassment under Article 134, prosecutors must prove several elements beyond a reasonable doubt:

Statute of Limitations

November 26, 2024 | The Law Office of Philip D. Cave

Statutes of limitations are legal deadlines for filing criminal charges. They are essential because:

Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.

Reasonable doubt

November 26, 2024 | The Law Office of Philip D. Cave

Reasonable doubt is the fundamental pillar protecting the rights of accused service members in a court martial. It is a legal standard that ensures a fair and just process and safeguards against the potential for wrongful convictions. The prosecutor must prove a case beyond a reasonable doubt, a crucial safeguard against false convictions. The BRD standard serves as a second cornerstone to a fair trial. BRD works alongside another cornerstone of the legal system- the presumption of innocence. The burden of proving guilt rests solely on the prosecution. The defendant does not have to prove their innocence. This principle helps to prevent wrongful convictions by ensuring that individuals are not punished unless the state can provide compelling evidence of their guilt. The high burden of proof helps to mitigate the potential impact of biases or errors in the justice system. It requires the prosecution to present objective evidence that can withstand scrutiny, reducing the risk of convictions based on prejudice, faulty eyewitness testimony, or flawed forensic evidence.

Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.