Court-Martial Trial Practice Blog

Sequestration of witnesses.

March 11, 2009 | The Law Office of Philip D. Cave

There are several times in a trial when I might ask the judge for a no contact order, to sequester witnesses, or to prohibit witness contact during a break or recess in the trial.

I have a fairly standard format for rape and child abuse cases. These in my experience are the cases where the opportunity for witness contamination is at its apogee. Oftentimes you are arriving on the scene too late as the defense counsel because most of the damage has already been done. However, you should still be attempting to minimize damage. For the moment though I wanted to focus on what happens in trial when there is a break in the trial and a witness is still on the witness stand either for their direct, their cross-examination, their redirect, or might be back for rebuttal. And this point works both ways — for defense and for government.

My personal belief is that once someone has begun their testimony no-one should talk to them and they should be told by the judge not to talk with anyone, including talking with the lawyer who called them. I always ask that of the judge when a prosecution witness is involved, and I always tell that to my own witnesses if it happens to us. There are too many ways subtle and not so subtle that a person can respond to the "how am I doing question," for example.

Members, how much information is too much.

March 10, 2009 | The Law Office of Philip D. Cave

Here’s a interesting reference to the Siegelman political prosecution case.

No Reversal Despite Juror Exposure To Internet Information, Media Accounts And E-mail, 10 March 2009.

Eleventh Circuit agrees with trial court, after a hearing with all

Brillon – new Supreme Court case.

March 10, 2009 | The Law Office of Philip D. Cave

The Supreme Court has decided Vermont v. Brillon.

The case is a Sixth Amendment speedy trial case.

The significant delays in the accused getting to trial were caused by Brillon's public defender counsel or himself. The bottom line issue is who is accountable for those delays — the government or the defense.

Eyewitness testimony.

March 10, 2009 | The Law Office of Philip D. Cave

Prof. Colin Miller, Can I Get A(n Eye) Witness: 60 Minutes Story Exposes Problems With Eyewitness IDs, Evidence Prof Blog, 9 March 2009.

Those of you who watched 60 Minutes last night saw the interesting story, Eyewitness: How Accurate is Visual Memory?

And the answer is, "Not very." The story detailed how Jennifer Thompson

Gangs in the military.

March 10, 2009 | The Law Office of Philip D. Cave

Worth the read is Gustav Eyler, Gangs in the Military, 118 Yale L. J. 696 (2009).

Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to promulgate regulations forbidding the active participation of service personnel in criminal street gangs. This Note reviews the threat posed by military gangs and analyzes existing military policies addressing gang affiliation. This Note concludes with recommendations for the military to consider when it drafts the new regulations demanded by Congress.

Rod Powers, Gang Activity in the U.S. Military, About.com, 12 February 2008.

Courts-martial for Gitmo?

March 9, 2009 | The Law Office of Philip D. Cave

American Chronicle reports that Rep. Adam Schiff (D-CA) has proposed legislation called the Terrorist Detainees Procedures Act.

Here is the link to H.R. 1315.

Here is a link to the congressman's Guantanamo Detainees Procedures Act of 2005.

Bluebook Online.

March 9, 2009 | The Law Office of Philip D. Cave

Yes, the Bluebook is now online, with yes, a paid subscription. A new annual subscription is $25.00. Subsequent annual renewals are

$15.00. Subscriptions of up to three years may be purchased at the

current rate.

Ethics, prosecutorial discretion, and 800lb G.

March 9, 2009 | The Law Office of Philip D. Cave

Melanie D. Wilson, Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did, 103 Nw. U. L. Rev. Colloquy 65 (2008).

The trial counsel (prosecutor)[n.1] works for the SJA, the SJA works for and advises the convening authority, the convening authority decides what cases go to trial and how they might be desposed of. I'd like to see the trial counsel try this recommendation.

As trained advocates with no personal stake in the outcome of a case, prosecutors are capable of presenting both views. During preliminary hearings, bail hearings, trials, sentencing hearings, and numerous other proceedings, the court routinely asks, "What's the government's position?" When a prosecutor disagrees with her supervisor about the government's position, what's wrong with telling the court that the "office's position is X but my own view is Y." For a concrete example, consider the prosecutor featured in The New York Times article.

More on uniformity in NG.

March 8, 2009 | The Law Office of Philip D. Cave

Here's a link

to attorney Bridget Wilson's article on the model state code of military justice

for the National Guard, that is available on NIMJ's website.

BRIDGET J. WILSON, MODEL STATE CODE OF MILITARY JUSTICE FOR THE NATIONAL GUARD NOT IN FEDERAL SERVICE, Justice for the Military's Minotaurs 6/6/2007.

Model State Code of Military Justice.

March 8, 2009 | The Law Office of Philip D. Cave

In 2003, Congress directed the Secretary of Defense to produce a Model State Code of Military Justice. This Code is intended to be adopted by all of the states for use when dealing with misconduct by personnel in Title 32 status. The idea is to try and have a "uniform" state code rather than 50+ differing codes (Guam and Puerto Rico provide National Guard units).

Jurisdiction over members of the National Guard generally rests with

either the federal government or the state to which their National