Court-Martial Trial Practice Blog

Air Force cases

March 18, 2009 | The Law Office of Philip D. Cave

AFCCA has put up a number of cases on their website, here are just a few.

United States v. Taylor, ACM 37065 (March 12, 2009). A case worth reading where the MJ allowed speculative testimony about date rape drug use. Affirmed.

United States v. Russell, ACM 37210 (March 12, 2009). Part way through a contested members case the prosecution asked for and got, over defense objection, a 40 day delay to get a witness whose absence from trial was caused by the government. I'd love to see the defense try that one.

After the Outlook section

March 18, 2009 | The Law Office of Philip D. Cave

Federal Evidence Review has put up a very good list of Supreme Court cases that impact evidence issues in a case. The list "includes constitutional, statutory, and Federal Rules of Evidence – based evidence-related cases." The list is by its nature discretionary and subject to change, but a useful reminder. Who knows, the Supreme Court may eventually issue an opinion in Melendez-Diaz.

Another one.

March 17, 2009 | The Law Office of Philip D. Cave

No. 09-0185/AR. U.S. v. Makisha I. MORTON. CCA 20060458. Review granted on the following issue:

WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE ARMY COURT ERRED IN FINDING APPELLANT GUILTY OF A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT.

The court might consider the resolution in United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009).

Article 32, UCMJ, testimony of a co-accused or witness.

March 17, 2009 | The Law Office of Philip D. Cave

Every so often the defense wants a co-accused to testify because they have something beneficial to say and they have already said it at the Article 32, UCMJ, hearing. As we know, the prosecution almost never willingly immunizes the witness, and judges don't always force the issue. (Odd how that happens to the defense, but never the prosecution.)

Anyway, check out, Federal Evidence Review's, item, Former grand jury testimony of cooperating witness should have been presented to the jury under FRE 804(b)(1); Ninth Circuit adopts broad application of “similar motive” requirement, in United States v. McFall, _ F.3d _ (9th Cir. March 9, 2009) (No. 07-10034).

This is a case where the alleged co-accused's testified to Brady material (my construction of this) at the grand jury hearings in the case. Of course the prosecution objected to having the grand jury testimony of the witnesses played at the accused's trial. The witnesses had invoked their Fifth Amendment privilege at trial. The government wasn't interested in having the witnesses evidence before the jury so they had not called the witnesses themselves, even though the witnesses had agreed to cooperate with the prosecution.

Collateral consequences resources — Immigration

March 17, 2009 | The Law Office of Philip D. Cave

Here is another resource via the Office of Defender Services, Legal, Policy & Training Division, Administrative Office of the Courts, Washington, DC.

Immigration consequences of conviction.

USERRA.

March 17, 2009 | The Law Office of Philip D. Cave

A little off topic, but I thought sufficiently interesting for a military justice audience.

Martha Neil, DOJ Files USERRA Suit Against Indiana Law Firm, ABA Journal Law News Now, 16 March 2009.

Referenced is another: Matthew Whittle, lawsuit involving braswell and former magistrate settled, Goldsboro News-Argus (on-line), 8 March 2009).

Judge OK’s Use of Pepper Spray in (Naval) Police Training

March 16, 2009 | The Law Office of Philip D. Cave

Yes, this is a story of some naval police who sued the DON for using real live "pepper" spray to have realistic training. It's possible these are civilian police employed by DON.

Some articles of interest.

March 16, 2009 | The Law Office of Philip D. Cave

Here are several articles of some interest.

Roger P. Alford, International or Foreign Law as an Interpretive Aid in Supreme Court Jurisprudence, 9(3) Engage 79 (October 2008).

Tom Gede, Kent Scheidegger, Fon Rychlak, The Supreme Court's 21st Century Trajectory in Criminal Cases, 9(3) Engage 44 (October 2008).

Military Rules of Evidence.

March 16, 2009 | The Law Office of Philip D. Cave

Rule 1102. Amendments. Amendments to the Federal Rules of Evidence shall apply to the Military Rules of Evidence 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

On September 19, 2008, Fed. R. Evid. 502, a new evidence rule concerning the attorney-client privilege and work-product doctrine, was enacted. See Pub. L. No. 110-322, 122 Stat. 3537.

Pending Rule Amendment: Fed. R. Evid. 804(b)(3) (Declarations Against Interest)

On the reliability of “expert” testimony — the ears (don’t) have it.

March 16, 2009 | The Law Office of Philip D. Cave

It app-ears that ear print comparisons have been advocated as a method of identifying a perpetrator. But, it app-ears that the British courts are giving the so-called expert an earful of doubt.

Andre A. Moenssens, Another Ear Print Conviction Reversed! (Prof. Moenssens is one of several law professors to follow on issues of forensics and evidence. A lot more can be found at Forensic-Evidence.com.

Credibility is always an issue.