Court-Martial Trial Practice Blog

Voluntariness, consent, and all that

June 22, 2019 | The Law Office of Philip D. Cave

Sommers & Bohm, The Voluntariness of Voluntary Consent: Consent Searches and Psychology of Compliance. 128 YALE L. J. 1962 (2019).

Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches.

These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states.

Affirmative defenses–Macdonald trailers?

June 21, 2019 | The Law Office of Philip D. Cave

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Did you know

June 20, 2019 | The Law Office of Philip D. Cave

On September 3, 2014, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records (BCM/NR) as they carefully consider each and every petition brought regarding under other than honorable conditions discharge upgrade requests by veterans claiming Post Traumatic Stress Disorder (PTSD). This includes a comprehensive review of all materials and evidence provided by the applicant.

This policy guidance is intended to ease the application process for veterans who are seeking redress and assist the Boards in reaching fair and consistent results in these cases. The guidance also mandates liberal waivers of time limits, ensures timely consideration of petitions, and allows for increased involvement of medical personnel in Board determinations.

This guidance provides that liberal consideration will be given by Military Department Boards for Correction of Military/Naval Records (BCM/NR) in petitions for changes in characterization of service. The supplemental guidance outlines specifically what type of records and evidence will be given special and liberal consideration by the boards. To read the memorandum and supplemental guidance, please click here.

SORNA

June 17, 2019 | The Law Office of Philip D. Cave

Prof. Doug Berman of Sentencing Law & Policy brings this tidbit about SOR in Alaska.

[T]he Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375 (Alaska June 14, 2019) decided that part of its state’s Sexual Offender Registration Act violates due process. Here is how the majority opinion starts and concludes:

This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASOR Aviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness….

Nullification of PTC credit

June 16, 2019 | The Law Office of Philip D. Cave

An accused in pretrial confinement awaiting trial receives day for day credit toward any sentence to confinement. In the old days, we referred to that as “Allen credit.”

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

Noteworthy Supreme Court petition

June 11, 2019 | The Law Office of Philip D. Cave

Friend and colleague draws attention to McGee v. McFadden, a petition for a writ of certiorari to the U. S. Supreme Court.

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

More information, including the petition at SCOTUSBlog here.

How would Dostoevsky view a court-martial case from investigation to verdict

June 11, 2019 | The Law Office of Philip D. Cave

A “study” in the effects of confirmation bias, victim-centered investigations, or flawed investigations followed by a flawed judicial process?

N. P. Kirillova and E. N. Lisanyuk, Truth and Legal Argument in Fydor Dostoevsky’s The Karamazov Brothers. 48 Bulletin of Tomsk State Univ., 193-204 (2019).

There were several reasons of the judicial error. The court investigator and the prosecutor investigated only one version of the murder, which seemed obvious to them but in fact was false, and they made no attempt to verify the defendant’s ver-sion, which in fact was true. Along with the prosecutor’s erroneous bias against Dmitry Karamazov, there were many circumstantial evidences pointing to him guilty, which led to the fallacious decision of the juries.

Army online conduct guidance

May 25, 2019 | The Law Office of Philip D. Cave

The very foundation of what we do depends on trust, and trust depends on the treatment of all Soldiers with dignity and respect by fellow Soldiers and leaders. Without this, our profession is placed in jeopardy, our readiness suffers, and our mission success is at risk.

The sentiment conveyed above is enduring; it epitomizes core Army values. In an age where electronic communication is commonplace, it is critical to ensure that dignity and respect is maintained offline and online. A harmful communication sent from behind a screen does not trivialize the behavior; the consequences of carrying out acts which flout Army values are the same regardless of the domain—cyber or face-to-face—in which those acts occur.

“It is relatively easy to hurt others when their suffering is not visible and when causal actions are physically and temporally remote from their effects.”2 This is a key reason why Army leaders need to understand how to manage online misconduct. To carry out their responsibilities, leaders need unambiguous and comprehensive regulatory tools at their disposal which they can apply consistently and confidently.

Army Deskbook 2019

May 25, 2019 | The Law Office of Philip D. Cave

The Army TJAGSA Criminal Law Deskbook is now online.

The cover notes that the DB “reflects changes” to the MJA effective 1 January 2019. The .pdf file is bookmarked.

Interestingly, Part B of the Introduction has a justification for a separate military justice system. They say there is a need for speedy trial–a need not necessarily reflected in the speed of investigations and trials–ask anyone who does trials on a regular basis. Part C.2., reflects the commander-centric need for a military justice decision-making process.

The harmful effects of law enforcement tunnel vision

May 25, 2019 | The Law Office of Philip D. Cave

The harmful effects of law enforcement tunnel vision do not end with wrongful convictions. Tunnel vision also undermines community trust in the police and damages an already fraught relationship.

In a sexual assault case, real victims are actually harmed when false allegations are buttressed by so-called “victim-centric” investigations. When false reports are “substantiated” others watching become cynical about sexual assault allegations in general. When people do not trust the system and the witnesses produced then it becomes likely they will apply a bias against sexual assault victims.

https://www.baltimoresun.com/news/opinion/oped/bs-ed-op-0523-cooperating-witnesses-20190522-story.html?fbclid=IwAR1bK1SV2c8HBlZIFP1Nogdm7k_Y-ZRC5Nd1uKxClLhJ-G03f77FwAHN9Qo