Court-Martial Trial Practice Blog

Careful who you speak to and what you say.

July 24, 2009 | The Law Office of Philip D. Cave

I routinely counsel clients not to talk with anyone regarding their case. Here is a new Navy case which is a reminder.

There is no evidence to suggest the appellant was engaged in plea discussions or negotiations with LtCol C at the time he repeated the advice from his father-in-law. The record reflects the appellant spontaneously mentioned the advice he received from his father-in-law to LtCol C, a friend and mentor. As in United States v. Watkins, 34 M.J. 344, 348 (C.M.A. 992), LtCol C was acting neither as nor on behalf of the CA or the staff judge advocate, nor was he authorized to engage in plea negotiations with the appellant. The statement was voluntarily made and its admission was not an abuse of discretion.

United States v. Toschiaddi, No. NMCCA 200800044, 2009 CCA LEXIS 246, at *5–6 (N-M. C . Ct. Crim. App. 16 July 2009).

Self-defense – again.

July 24, 2009 | The Law Office of Philip D. Cave

I have previously commented about evidence of the victim’s character for violence and specific incidents. To refresh – there are several ways the assault victim’s character for violent behavior can become relevant and admissible in an assault case.

a. The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b. The prosecution puts on opinion testimony of the victim’s character for peacefulness.

Corroboration

July 24, 2009 | The Law Office of Philip D. Cave

An item sometimes missed or perhaps not always explored in cases with a confession is the question of corroboration. Here is an Army case that discusses the issue quite well. The case recognizes that the amount of corroboration is small so it’s easy to gloss over the corroboration issue. Here is the value of the admonition to check the elements, do whatever “proof” chart you use, and take a moment to consider if the government can meet their burden to get past a motion. Also remember, that so long as made in good faith, such a motion becomes a discovery tool. A motion for a Bill of Particulars is not to be used purely for discovery, however, such a motion – again so long as made in good faith — in part gives some discovery. Anyway, back to Rosas.

United States v. Rosas, No. ARMY 20060075 (A. Ct. Crim. App. 14 July 2009).

Appellant was the leader of a conspiracy involving four other United States Soldiers, several U.S. citizens, and one or more Colombian co-conspirators. His offenses occurred over the course of a two-year period during which appellant was a mission supervisor on electronic surveillance flights over Colombia.

Fingerprint examination – expert testimony – admissibility.

July 23, 2009 | The Law Office of Philip D. Cave

We have jurisdiction under 28 U.S.C. § 1291. Concluding that the district court did not abuse its discretion in allowing the government to present expert evidence that a thumb print found on some of the contraband recovered by the authorities was a match to Baines’ print, we affirm the judgment of the district court.

United States v. Baines, No. 08-2098, 2009 U.S. App. LEXIS 15945, at *1–2 (10th Cir. Jul. 20, 2009).

McElhaney on Litigation

July 23, 2009 | The Law Office of Philip D. Cave

When the Judge Is the Jury: Your goals don’t change in a bench trial, but your techniques should, August 2009 issue of the ABA Journal.

Extent of a search for drug related information and computers

July 22, 2009 | The Law Office of Philip D. Cave

A search warrant for drugs and possible records of drug sales did not permit officers to enter defendant’s computer where the execution of the warrant produced no evidence of drug sales on the premises. (There was also a Franks violation because the officer represented a neighbor’s report of drug use and drug sales, but the remainder of the affidavit showed PC. Child porn was found on the computer.) United States v. Payton, 07-10567 (9th Cir. July 21, 2009).

/tip to fourthamendment.com blog for reporting this case.

SODDI

July 22, 2009 | The Law Office of Philip D. Cave

Does the SODDI defense work?

Here are some thoughts or considerations.

Elizabeth R. Tenney, Hayley M.D. Cleary, Barbara A. Spellman, "This Other Dude Did It!" A Test of the Alternative Explanation Defense, 21 The Jury Expert July 2009.

Witness preparation

July 22, 2009 | The Law Office of Philip D. Cave

Valerie Blum, Alexandra Rudolph, From the Conference Room to the Courtroom: How a Change in Setting Affects Witness Preparation, 21 The Jury Expert, July 2009.

Consciousness of guilt

July 22, 2009 | The Law Office of Philip D. Cave

Seventh Circuit determines that admission of an audiotape of robbery defendant beating and threatening the life of a potential witness was a “close[ ] call” but that its probative value in suggesting defendant’s guilty conscience “cannot be genuinely disputed” and that this evidence was not unfairly prejudicial despite the fact that one could hear the sounds of the beatings on the recording, in United States v. Calabrese, F.3d (7th Cir. July 14, 2009) (No. 08-2861).

/tip FederalEvidenceBlog.

Why we don’t do joint trials.

July 22, 2009 | The Law Office of Philip D. Cave

Confession(s) To Make: Florida Court Orders Separate Trials Of Former Football Players Based Upon Bruton Issues

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant’s out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. This so-called "Bruton doctrine" explains why former high school football players in Bradenton, Florida were informed on Friday that they will have separate murder trials.

I remember in 1980 appearing with 11 other defense counsels and eight accused for a joint Article 32, UCMJ, hearing. Ultimately each of the cases was dealt with individually through dismissal of charges, PTA’s, trials.

I’m sure there have been some other joint Article 32, UCMJ, hearings. But, I think correctly, you aren’t going to see many if any joint trials. The piece by Professor Colin Miller indicates one of the problems often found in joint trials.