As a defense counsel you can learn a lot from the prosecutors.
Here is a APRI monograph which explains emails and how to maybe identify who has been sending them. This type of information is as equally useful to the defense counsel as to the prosecutor. The reverse of course works for prosecutors. Make Sun Tzu proud; study the ways of your enemy.
Understanding E-mail.
Professor Yung posts and asks Which Community Standard? The question relates to purchasing of alleged obscence materials across state lines.
For courts-martial, the community standard question is also important for allegations alleging indecency or obscenity. It would be beneficial for a service-member being prosecuted at court-martial for an incident in the local town to argue the alleged acts or items are not indecent according to that community standard. Not so fast. The military has it's own community standard. It's basically the most restrictive, and some.
In United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996), the military judge incorrectly instructed the Members (jury) that:
Professior Miller’s blog has this topic Let’s Make A Deal: Supreme Court Of Pennsylvania Correctly Affirms Rule 410 Ruling But On Wrong Grounds.” Evidence Prof. Blog, 30 January 2009. Professor Miller argues, correctly, that the court was right, but for the wrong reason (under Federal Rule of Evidence 410, as well as the Pennsylvania Rule).
I’m writing to add a military nuance.
First, under Military Rule of Evidence 410, the Pennsylvania decision would still be correct, but for the wrong reason — or would it? On the facts the answer is still yes. See United States v. Watkins, 34 M.J. 344 (C.M.A. 1992)(statements to Army CID). There is however a potential nuance for some cases particularly in the Department of the Navy. I have to admit that I’ve tried to advance a similar argument as that made by the appellant in VanDiver, — and yes lost. Van Diver was talking to the police, the military equivalent of the MP’s, NCIS, OSI, CID, CGIS, not an attorney. There’s also no evidence to suggest that the police improperly told Van Diver that they had authority or implied authority to strike a deal, etc. These facts of the police/suspect interaction would put Van Diver into a different context — improper promises, etc.
From SMART (Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking), Office of Justice Programs, Department of Justice.
A Practitioner's Guide to the Adam Walsh Act
Cases Interpreting 18 USC 2250 (September 23, 2008)
In United States v. McPherson, CCA 20070115, No. 08-0651/AR, the court has granted the following issue.
(As noted earlier the lower court opinion does not appear to be available on the court's website or LEXIS.)
— Or more likely you can't un-ring the phone.
United States v. Thomas, 2009 U.S. Dist. LEXIS 4389, No.08-cr-87-bbc-02 (W.D. Wis. January 20, 2009), is of interest for several reasons: the use of cellphone tracking technology, and application of the recent U.S. Supreme Court decision in Herring v. United States.
First for the techies. Police were investigating a bank robbery involving four suspects. As a result of some astute investigating they interviewed a potential suspects mother. During the interview she told the police about some cellphone calls, in particular a lot of calls from one number where she didn't know the caller. Acting on a hunch, a good hunch as it turned out, police then obtained a trap and trace warrant on that cellphone number. Police then used some sophisticated equipment.
Professor Yung at Sex Crimes blog has brought attention to a Tennessee decision which would allow expert testimony about an accused's sleepwalking in a child sexual abuse case. He ponders that, "I always discuss sleepwalking as an example, but students sometimes
doubt it ever really comes up. I never imagined it would be a defense
in a child molestation case."
The Air Force Court of Criminal Appeals has issued a decision in United States v. Harris, __ M.J. ___, No. 2008-03 (A. F. Ct. Crim. App. 2009).
IP: This was a government appeal under Article 62, UCMJ.
Background: The accused had been prosecuted for use of cocaine. At trial he testified to an innocent ingestion defense and a friend testified to support his claim. He was found not guilty. The accused tested positive again for cocaine shortly after trial. OSI investigated and the accused's friend dimed him out. Thus the accused is now being prosecuted for obstruction of justice and perjury which resulted in his acquittal. The military judge dismissed the charge based on R.C.M. 905(g), the res judicata and collatoral estoppel rule. Intuitively it would seem right that a person who lied to get acquitted in his trial could be prosecuted later if the lie was exposed and could be proven. However, it's not that simple. What ifthe lie wasn't the reason for the acquittal? What if the members found the accused not guilty because of a serious flaw in the urinalysis collection process?
Major Tyesha E. Lowery, One "Get Out of Jail Free" Card: Should Probation Be an Authorized Courts-Martial Punishment?, 198 Mil. L. Rev. 165 (2008).
Probation is not an authorized punishment that can be adjudged by the military judge or members. The author of this article advocates allowing the trial sentencer to impose "probation," and therefore substituting the military judge's own view of what's good for the unit for that of the commander.
Lest you think otherwise, I'm not averse to a properly constructed, managed, and supervised probation program. It could begin with something similar to the A.F. return to duty program or a residential, non-custodial, correctional training; a form of "liberty risk" / Cinderella liberty; monthly random urinalysis; alcohol screening; anger management counseling; and various other counseling programs.
Among the cases denied review were a test of the privacy of a worker’s
computer when the employer agrees to let police search it for
criminal activity — an issue raised by state officials in Florida v. Young (08-528)
Court-Martial Trial Practice Blog
