Court-Martial Trial Practice Blog

Why?

May 13, 2018 | The Law Office of Philip D. Cave

In general, motive can be described as an inward emotion, passion, or feeling in a person which “is likely to lead” that person to do an “appropriate act” as “an outlet” for this emotion. See J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 117 (3d ed. 1940) (hereafter cited as Wigmore). The defense particularly contended that the prosecutrix had a feeling of anger towards appellant and a feeling of guilt concerning herself. She argued that it was reasonable to infer that an angry person would do some act of revenge against the person who was the object of her anger. She further intimated that a person experiencing guilt would do some act of revenge against the person who caused this feeling of guilt to surface. The particular acts to be inferred from this emotional state of mind in the prosecutrix were her false accusations that appellant raped her. No argument has been presented by the Government which would lead us to conclude that such acts of revenge could not be reasonably considered appropriate outlets for these emotions. Id.

United States v. Dorsey, 16 M.J. 1, 4 (C.M.A. 1983).

You are not alone

May 13, 2018 | The Law Office of Philip D. Cave

If you have been falsely accused of a sexual offense you are not alone. I agree and understand that does not make your time in the hot seat happy, comfortable, or certain the truth will out.

Here is an article about sexual offense investigation and prosecution in the U.K. U.S. service members will see similarities–sadly.

“Guilty until proven nnocent: life after a false rape allegation.” Jonathan Wells, The Telegraph (UK), some takes and inferences.

Missed opportunity

May 12, 2018 | The Law Office of Philip D. Cave

Some may remember United States v. Denedo, where the appellant won at the Supreme Court, but then his appellate lawyer failed to file a petition to CAAF in time–out of court, done, no relief.

So here’s an interesting Coast Guard case–United States v. Reese III.

Reese filed a petition for a writ of coram nobis.

Obedience to orders

May 5, 2018 | The Law Office of Philip D. Cave

“An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The accused has the burden to establish that the order is not lawful. Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972). Indeed, a professional military institution could not otherwise function without a service member having a duty to obey lawful orders.

United States v. Kisala, 64 M.J. 50, 52, n.5 (C.A.A.F. 2006).

A piece at JustSecurity (WTR) begins:

This is why Sex Offender Registration is complicated

May 2, 2018 | The Law Office of Philip D. Cave

I always tell clients that the specific sex offender registration requirements are complicated and depend on state law. Here’s a reason why.

In New York a defendant can be forced to register as a sex offender for the rest of his life based on accusations a jury rejected. So the state’s highest court ruled last week in a case that illustrates how fear and loathing of sex offenders lead to results that would be recognized as unjust and illogical in any other context.

See more at reason.com

Why Facts Don’t Change Our Minds

May 2, 2018 | The Law Office of Philip D. Cave

Why Facts Don’t Change Our Minds

This is an interesting read on what I usually refer to as confirmation bias.

Punitive not collateral

May 2, 2018 | The Law Office of Philip D. Cave

I have argued for some time that sex offender registration is punitive not merely collateral to a conviction.

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress’s delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline “The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal.”

So begins a post by Professor Berman of Sentencing Law & Policy blog.

Let’s object

May 2, 2018 | The Law Office of Philip D. Cave

During trial, the defense counsel make many decisions; sometimes there is an objection to evidence, sometimes not. How the appellate courts deal with allegedly inadmissible evidence depends on whether there was an objection at trial.

If there is an objection the appellate court looks to see if the evidence was objectionable, whether the judge abused his discretion in overruling the objection, and if the error was harmful or harmless (prejudice).

If there is no objection the appellate court may apply the plain error rule.

Hills trailer park

April 21, 2018 | The Law Office of Philip D. Cave

Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand. Here is a list of the most recent CAAF actions.

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

Army–partial return to the public

April 21, 2018 | The Law Office of Philip D. Cave

Go to Army publications

After a lengthy absence from the general public, the following are now, again, available to the public. (ACCA decisions are still not available.

Army Lawyer.