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I have noticed an increase is improper prosecution arguments over the last five years — connected I think to sexual assault cases mostly.  So here is an article of interest.

Combating Prosecutor Misconduct in Closing Arguments, Oklahoma Law Review, Vol. 70, No. 3, Forthcoming

From the abstract:

I’ve been told more than once that a person doesn’t make a false allegation of rape because they have been rejected by someone they are romantically interested in.  Such denials a batguano crazy.  Take this as an example.

Following the verdict, Joanne Jakymec, chief Crown prosecutor for Wessex said: “Rebecca Palmer indulged in consensual sexual activity with the victim, but on being rejected by him embarked on a malicious campaign which led to him being arrested on more than one occasion and held in custody for periods of time.

From the Swindon Advertiser.


Trial and appellate lawyers often need to interpret what a statute means and how it applies to their case.

“There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit.”

Says Prof. Tessa Dysart on Appellate Advocacy Blog.  She is referring to Nix v. Hedden, 149 U.S. 304 (1893), which held that “under customs law tomatoes counted as vegetables — and the importer had to keep paying the tariff.”  Her post is referring to State v. Barnes, decided 12 October 2017, by the Washington Supreme Court.

On 12 October 2017, the CAAF granted petitions worthy of watching:

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


At SimpleJustice blog (a blog worth following) there is a piece about Judge Kopf and a tweet which leads to a discussion of a prosecutors obligation to provide discovery to the defense.

Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.

It is common to obtain character and rehabilitation letters for a service-member at trial.  There is an art to getting and using good letters.

Rule 1, don’t have a letter (or testimony) in which the writer impeaches the verdict.  “This is out of character,” or something to that effect is much better and won’t draw criticism from the judge.

Here is a link to Simple Justice, a blog worth following, in which there is a discussion of support letters.

Yes, it is.  In dissenting to the Coast Guard Court of Criminal Appeals majority opinion in United States v. Decker, the dissenting judge says:

This is a vexing case; the kind that sexual assault prevention training seeks to avoid. I agree with the majority’s resolution of Assignment of Error III, and I agree that the evidence presented in this case is legally sufficient to support findings of guilty to the specifications of Charge I and to Charge I. I would disapprove the findings of guilty to the specifications of Charge I and to Charge I, because I have a reasonable doubt that CG was incapable of consenting to the sexual act due to impairment by alcohol or any other substance; or unconscious, or otherwise unaware that the alleged sexual act was occurring. Considering all of the evidence presented, it is just as likely that CG was conscious, aware, and capable of consenting, but does not remember because of an alcohol-induced blackout.

Exactly!  I would suggest that 90% of military sexual assault cases involve both parties having drunk alcohol and claiming a lack of memory or ‘I was too drunk.’  The effects of an alcohol blackout on memory are well known and scientifically established.  What is also well known is that people in an alcohol blackout can still act and talk “normally” as perceived by others.  The dissenting judge’s discussion is a little more complex because of the way the offense was charged and the approach taken by the prosecution.

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence.  The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

Crowder’s next orders took him to Fort Yates, North Dakota, where the United States Army attempted to suppress the religious Ghost Dance movement. While stationed at Fort Yates, Crowder proved successful in his legal defense in three court-martial proceedings. His actions were noted by Army superiors and after being promoted to the rank of captain, Crowder was reassigned to the Judge Advocate Generals Corps in 1895.

Says a piece in the Neosho Daily about Enoch Crowder.

BG Crowder is well known to historians of military justice for the sometimes contentious but always entertaining Ansell – Crowder dispute on military justice and see here.