Court-Martial Trial Practice Blog
Here is the NMCCA en banc opinion in United States v. Neal, __ M.J. ___ NMCCA 200800746 (N-M Ct. Crim. App. March 31, 2009), regarding Article 120, UCMJ.
.
Have Briefcase (and
Internet), Will TravelFor a Free Consultation
Peremptory challenges
The Supreme Court has decided Rivera v. Illinois. Justice Ginsburg wrote for a unanimous court.
This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?
The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court.
Giles update
Courtesy of FederalEvidence blog we have an update on Giles.
In Giles v. California [documents at SCOTUSWiki], the Supreme Court [Giles the opinion] considered the application of
the forfeiture by wrongdoing exception under the Confrontation Clause and likely Crawford v. Washington,
IAC
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
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
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
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
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
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.
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