Court-Martial Trial Practice Blog

Article 32’s and depositions.

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

Criminal lawyers can't learn from civil practice lawyers and vice-versa?

Let's think of an Article 32, UCMJ, hearing as a deposition. In most cases it has the effect of a deposition in terms of fodder for cross-examination, direct, or preparation at trial (except for Air Force cases). [1] Also, in certain circumstances the Article 32, UCMJ, transcript takes the place of a deposition when a witness is not available for trial (except for Air Force cases). See United States v. Cabrera-Frattini, 65 M.J. 241 (C.A.A.F. 2007) , but see United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005). So, we can perhaps learn from how civil practice lawyers go about doing depositions?

Evan Schaeffer has The Trial Practice Tips Weblog.

Legally thinking

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

Professor Solum is getting some play in the legal blogs over the last day or so. Professor Solum explains the interpretation-construction distinction, in 8 February 2009, Legal Theory Lexicon: Interpretation and Construction, post.

We can roughly define these two activities as follows:

* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.

Another Suspect

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

The Blog of Legal Times, 6 February 2009, has this entry:

A seventh suspect was arrested and charged today for the murder of

Juwan Johnson, the U.S. Army sergeant who was beaten to death by other

Post-conviction access to DNA evidence

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

Lisa Demer, High court to hear Alaska man's DNA appeal, Anchorage Daily News, 7 February 2009.

Osborne was born and raised in South Carolina, graduated high school

there. He said he was accepted into The Citadel but it was too

Chances on appeal?

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

Not good? Is that the bottom line coming out of appellate results proffered by CAAFLog, Appellate Relief Data (8 February 2009)?

CAAFLog's own "research" of Air Force opinions yields an approximate 4.7% chance of getting relief, and an undetermined chance of meaningful relief within that number of cases.

CAAFLog also points to Major Jeffrey D. Lippert, Automatic Appeal Under UCMJ Article 66: Time for a Change, 182 MIL. L. REV. 1, 17 (2004).

Confrontation

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

Check out, Island Justice: Guam Supreme Court Opinion Reveals Important Hearsay & Confrontation Clause Principles, Professor Colin Miller, Evidence Prof Blog, 7 February 2009.

They discuss an interesting case of an assault victim. It was six days before police could interview her, and she was interviewed a second time after that. The police office was allowed to testify about her physical condition and what she said at each interview — statements which were not helpful to the accused, else why would we be talking about him. Quoting the Prof:

The court agreed with Jesus that Gadia was "unavailable" as that term is defined in Guam Rule of Evidence 804(a)(3)

The School Solution

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

The Reporter, Vol. 35, No. 3 (Fall 2008) has a couple of articles worth reading.

Major Jefferson McBride, CONFRONTATION CLAUSE: The Way Ahead with Remote Testimony, p. 20.

Major Thomas Dukes, EXPECTATION OF PRIVACY? A Brief History, Including [United States v.] Long, [United States v. ] Larson, and DOD’s New Computer Use Policy, p.22.

Forensic reliability?

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

Solomon Moore, Science Found Wanting in Nation's Crime Labs, N.Y. Times, 4 February 2009.

John Eligon, New Efforts Focus on Exonerating Prisoners in Cases Without DNA Evidence, N.Y. Times, 7 February 2009.

Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.

It’s not that shocking.

February 6, 2009 | The Law Office of Philip D. Cave

Do you ever get the client or family member who want to sue NCIS, OSI, CID, CGIS, for what they did in an interrogation. Barring application of Feres (ha, some English major has to find something wrong with that).

Check out Smith v. Campbell, et. al., 295 Fed. Appx. 314, 2008 U.S. App. LEXIS 19085 (11th Cir. 2008), a case in which the police got Ms. Smith to confess to murder of a person who committed suicide. The police interrogation methods did not shock the conscience and were justified. Ms. Smith's 1983 case dismissed.

Death is Different

February 6, 2009 | The Law Office of Philip D. Cave

C.A.A.F. has DNA on its conference agenda.

In a post-conviction access to DNA evidence case:

The district court found that Bradley had a constitutionally protected