Court-Martial Trial Practice Blog

CAAF and CP and conduct unbecoming

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

United States v. Forney, __ M.J. ___ (C.A.A.F. March 26, 2009). This is a case where the appellant was convicted on charges and evidence for a situation later declared unconstitutional by the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). This is the issue of actual versus virtual CP — primarily the Japanese anime cartoon type. However, the court found that the appellant could properly be convicted of conduct unbecoming in violation of Article 133, UCMJ.

[T]he possession of images of virtual children engaged in sexually explicit conduct may give rise to a conviction for conduct unbecoming an officer and a gentleman.

That the possession of virtual child pornography may be constitutionally protected speech in civilian society does not mean it is protected under military law.

CAAF and police reports.

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

United States v. Clayton, __ M.J. ___ (C.A.A.F. March 26, 2009).

In this case one police officer testified, and he was allowed to testify about his personal knowledge of drugs found. However, the military judge also allowed the witness to lay a foundation for a redacted translation of a German police report of drugs found and their place of finding by other police officers and a civilian. The other police officers and the civilian were not called as witnesses and they had apparently not testified at an Article 32, UCMJ, hearing or in a deposition.

Most pertinent to this case, the Supreme Court has identified “‘statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’” as an example of “core” testimonial hearsay. Rankin, 64 M.J. at 351 (quoting Crawford, 541 U.S. at 52). In turn, this Court has established “a number of questions . . . relevant in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial.” Id. at 352.

Cross-examination

March 27, 2009 | The Law Office of Philip D. Cave

Persuasive Cross-Examination:
Juries don’t like it when you cross over from tough to just plain nasty,

ABA Journal – Law News Now, http://www.abajournal.com/magazine/persuasive_cross-examination/ (last visited Mar. 27, 2009).

Government breach of a PTA.

March 27, 2009 | The Law Office of Philip D. Cave

This is a waivable issue, as SCOTUSBlog reports.

The Supreme Court ruled Wednesday that, if federal prosecutors violated

a plea bargain with an accused who pleads guilty, that must be brought

Denedo and military coram nobis

March 27, 2009 | The Law Office of Philip D. Cave

Here is the oral argument transcript from United States v. Denedo, argued at the Supreme Court this week.

Also, here is the link to CAAFLog's review of the argument.

Stop-loss

March 27, 2009 | The Law Office of Philip D. Cave

One of my favorite newspapers, The Onion, has this comment on Stop-loss from the person in the street.

Threats by clients

March 27, 2009 | The Law Office of Philip D. Cave

Here is a post from Legal Blogwatch:

Here is a scenario that sounds like a law school exam question.

It was after midnight when the client began to leave a series of

Journalist privilege.

March 27, 2009 | The Law Office of Philip D. Cave

I'll use the posting of JURIST to indicate that:

The US House Judiciary Committee [official website] on Wednesday approved a bill HR 951 that would limit the government's ability to compel

reporters to disclose confidential sources. Under the terms of the Free

Are military breath tests reliable?

March 26, 2009 | The Law Office of Philip D. Cave

According to the MJ ruling in a case I just completed in Korea, the Intoxilyzer SD2 is reliable if administered in accordance with its instruction manual and the applicable AR. However, at Camp Casey, Korea, they are not admissible. That is because the MP's do not conduct proper calibrations in accordance with the test instructions and AR on how Army breath tests are to be conducted. For the military judge this failure constitutes a major departure from the regulation and not a minor failure.

Note: this is a Joint regulation applicable to all of the Services:

AR 190-5; OPNAVINST 11200.5; MCO 5110.1; AFI 31-218(I)

Are eyewitnesses accurate?

March 19, 2009 | The Law Office of Philip D. Cave

tip: to Crime & Consequences, who gives a Hat tip to Howard Bashman at How Appealing for his post reporting on an audio segment on NPR's "Day to Day"

discussing the reliability of eyewitness identification in criminal

trials. The segment, from Slate.com writer Dahlia Lithwick, dicusses