Court-Martial Trial Practice Blog

IAC

March 29, 2009 | The Law Office of Philip D. Cave

Here is the most recent Supreme Court case on IAC claims and evaluation of them. Knowles v. Mirazanyance, ___ U.S. ___ (March 24, 2009).

In this case the appellant sought to convince the courts that his counsel's failure to advance a defense was ineffective. The issue revolves around the existence or potential existence of a requirement to advance every available defense or theory regardless of counsel's evaluation of the benefit or value of doing so. To some extent the issue relates to the client who says "do this" and the counsel who says "no that won't work," or something similar. Or to put it another way, when should appellate courts substitute the judgment of the client over that of the counsel when there are decisions to be made on how to proceed at trial.

This Court has never established anything akin to the Court of Appeals’ “nothing to lose” standard for evaluating Strickland claims. Indeed, Mirzayance himself acknowledges that a “nothingto lose” rule is “unrecognized by this Court.”

Post-trial R.C.M. 917 motions

March 29, 2009 | The Law Office of Philip D. Cave

A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).

Rule 29. Motion for a Judgment of Acquittal

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.

New CAAF grants

March 29, 2009 | The Law Office of Philip D. Cave

Here are a couple of CAAF grants of immediate interest to trial practitioners.

No. 08-0808/AR. U.S. v. Derand M. DAVIS. CCA 20070808 (couldn't see this on the Army public website). Review granted on the following issue:

WHETHER TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE WHEN HE, WITHOUT CONSULTING WITH APPELLANT, SUBMITTED MATTERS TO THE CONVENING AUTHORITY BUT FAILED TO SUBMIT APPELLANT'S PERSONAL STATEMENT.

Where’s the court going

March 29, 2009 | The Law Office of Philip D. Cave

David G. Savage, Who's Policing the Fourth Amendment? Two cases push the unevenly enforced exclusionary rule closer to repealABA Journal, April 2009. Another writer musing on the potential demise of the Fourth Amendment as we thought we knew it.

Hearsay within hearsay

March 29, 2009 | The Law Office of Philip D. Cave

Here is a post from Prof. Colin Miller reminding us that hearsay within hearsay is still a potential objection to the contents of business records sought to be admitted under a Mil. R. Evid. 803 exception.

Prof. Colin Miller, Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted, EvidenceProf blog, 28 March 2009.

The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 08- 50130 (9th Cir. March 27, 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.

Expectation of privacy in cyberspace

March 29, 2009 | The Law Office of Philip D. Cave

Here is an interesting piece from Wired. Bruce Schneier, Security Matters, Wired, 26 March 2009.

The piece talks about the challenges of maintaining privacy and a "Katz" level of privacy in an increasingly wired society.

In the United States, the concept of "expectation of privacy"

Handwriting.

March 29, 2009 | The Law Office of Philip D. Cave

Here's a filler piece from Slate.
Nina S. Rastogi, Murder, She Wrote: How forensic handwriting identification works, Slate, 26 March 2009.
Here's an interesting standard for expert testimony admissibility:

According to the handful of studies on the subject, a trained examiner will be correct more often than a layman.

One 1997 study

Lay witness expertise

March 29, 2009 | The Law Office of Philip D. Cave

A lot of times we get caught up in the need for an "expert" witness. If you have an expert witness the person is testifying under Mil. R. Evid. 702. True, the expert can "get-in" more information than other witnesses, but do you always need an expert. Federal Evidence blog reminds us that lay witnesses can often be sufficient testifying under Mil. R. Evid. 701. This is an excellent blog for all kinds of evidentiary issues and background information. Here is their note about one such recent case.

The First Circuit explains the circumstances in which an undercover agent may give lay testimony “as to the meaning of code words or phrases” concerning drug quantities based on the agent's “undercover drug buys”; noting as one factor whether the witness's lay testimony “corresponds” to undisputed facts, in United States v. Santiago, __ F.3d __ (1st Cir. March 19, 2009) (Nos. 07-1575, 07-1718, 07-1728, 07-2017).

Transferring large files

March 29, 2009 | The Law Office of Philip D. Cave

Are you like me — you need to send or receive large files via email. If that's the case — the law enforcement ROI, is a good example — here is a free, experimental way to transfer large files without having to send them by email. Most email accounts have size limits on what can be sent as an attachment to an email. I don't know yet if it works to a military computer.

JetBytes

tip: Future Lawyer

Supremes another shift

March 28, 2009 | The Law Office of Philip D. Cave

Is there about to be another shift in interrogations law from the Supreme Court. Earlier we mentioned several commentators on the subject of how the "new" court is changing personal rights when faced with investigators. See an earlier post: Exclusionary Rule — To be Dead Letter Law — Possibly?

Court questions Michigan v. Jackson from SCOTUSBlog.

The Supreme Court on Friday told lawyers in a pending case, heard on