Court-Martial Trial Practice

NMCAA’s decision in United States v. Johnson, NMCCA 200900141 (N.M. Ct. Crim. App. 25 August 2009), nicely sets out the courts view of when and how bad language is subject to prosecution as indecent.  A totality of the circumstances factual and contextual test must be used it seems.

The precise parameters of what constitutes indecent language have been the subject of considerable debate over the years.

The court examined the impact of United States v. Brinson , 49 M.J. 360 (C.A.A.F. 1998) and United States v. Negron, 60 M.J. 136 (C.A.A.F. 2004).  In Negron the court stated that prospectively:

Following on the heels of NCIS’s recent testing of video-taping interrogations, it appears that OSI will start recording confessions.

Starting on 1 October, Air Force OSI will, as a matter of policy, make a video recording of ”subject interviews.”  Recording of witness and vicitm interviews will be optional.

/tip CAAFLog.

AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

Formal Opinion 09-454 July 8, 2009

Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense.

This ethical opinion reinforces the rule that the prosecutors obligation to disclose certain types of information to the defense is self-executing – that is Brady, Kyles, Giglio, and similar material must be disclosed even though the defense has not submitted a formal discovery request — and goes beyond what the R.C.M. and appellate decisions say.  So, for example, a prosecutor has an ethical duty to disclose certain information she learns during pretrial interviews of prosecution witnesses.

Here is an interesting case from the 9th Circuit on computer searches.  There may be some applicability here to military computer searches.  The opinion is written by the well respected Judge Kosinski.

CA9: Balco en banc: Computer search under Tamura not an excuse for a plain view; there has to be limits

The Ninth Circuit in Balco en banc (panel opinion: United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008)) determines that seized computer information needs limits under the “venerable” pre-“information age” Tamura case (United States v. Tamura, 694 F.2d 591 (9th Cir. 1982)). This is a remarkable effort at keeping computer searches from becoming general searches or excuses for plain view inside the hard drive. United States v. Comprehensive Drug Testing, Inc., No. 05-10067 (9th Cir. August 26, 2009) (by Kosinski, J.

Here is the start of some commentary by Volokh about limits on fishing surfing expeditions.

SOR seems to be a current topic, here is a new post from Prof. Yung:

Another Free Exercise of Religion Issue for a Sex Offender

These days, sex offenders can’t even go to church in some areas. Not long ago the State of Georgia enacted a law prohibiting sex offenders from volunteering at church. Now a North Carolina sex offender is fighting for the right to attend church, albeit one that also maintains a day-care center.