Yes, is my answer, or at least that is my answer in a brief filed with the Army Court of Criminal Appeals and in several arguments at court-martial.
Under Mil. R. Evid. 801(2), you can offer the out of court statements of an opposing party or certain statements of that parties lawyer as evidence. Such evidence is not hearsay.
(d) Statements that Are Not Hearsay.
Yes, is my answer.
In several cases at trial I have objected to prosecution evidence under Mil. R. Evid. 412, for the prosecution’s failure to follow the rule.
Mil. R. Evid. 412 is clear that it applies to prosecutors. First the rule states:
Worth the read is a pending Supreme Court petition that may have impact on military cases.
Issue: Whether the Confrontation Clause permits the prosecution to introduce an out-of-court, testimonial translation, without making the translator available for confrontation and cross-examination.
That is the issue in Ye v. United States, a history of which can be found at SCOTUSBlog.
OPNAV INSTRUCTION 1750.3A
From: Chief of Naval Operations Subj: TRANSITIONAL COMPENSATION FOR ABUSED DEPENDENTS
SecNav has signed a new policy on administrative separations for misconduct where the person has a mental health issue.
To protect Sailors and Marines suffering with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) or any other diagnosed mental health condition, Secretary of the Navy Ray Mabus has made his department the first in the military to assure such conditions are considered before separating a service member.
Previously a service member’s misconduct took precedence over diagnosed mental health conditions when considering separation, which impacted the veteran’s ability to receive benefits. Now, if it contributed to the misconduct, the medical condition will take precedence.
Senator Gillibrand accused DoD of lying to her about certain sexual assault statistics.
Defense Secretary Ash Carter is pushing back on reports that the Pentagon misled Congress on its handling of sexual assault cases, blaming misunderstandings and a lack of access to some information.
Now here is the letter SecDef Carter sent in response.
A 31 May 2016 grant at CAAF.
No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
Now available:
05-09-2016, Investigative Oversight, Evaluation of the Separation of Service Members Who Made a Report of Sexual Assault (Project No. 2015C012), DODIG-2016-088.
The report does not necessarily define what retaliation is–that’s a failing. Unfortunately people will start to believe it’s whatever the complaining witness says it is, even though something isn’t and shouldn’t be considered retaliation.
As people know, I follow closely issues of improper prosecution argument. Trial counsel’s arguments present an opportunity for significant error and perhaps a new trial. Well, this snapped my head when first read.
Appellant, a married African-American adult of 27 years, raises a complaint under Grostefon which merits discussion. He asserts government counsel referred to him in a racially offensive manner by calling him “boy” twice. Specifically, appellant characterizes as racial epithets government counsel’s remark in closing, “This old boy was ‘Courtin’ n Sparkin’.’” (quotations in original), and subsequent argument in rebuttal, “And they keep harping on the fact that he’s not a big-ole boy.”
We have carefully considered the context surrounding counsel’s use of the word, “boy,” noting our nation’s highest court’s view thereof: “Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” In this case, appellant was elsewhere described as acting as if he had an immature crush on SPC PK, and we are confident in concluding that this—rather than “racial animus”—was the backdrop for the comments.
Here’s an interesting summary disposition from CAAF.
No. 16-0468/AR. U.S. v. James H. Lee. CCA 20140309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel was ineffective in failing to identify and investigate potential mitigation evidence for the presentencing hearing. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:
WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND INVESTIGATE POTENTIAL MITIGATION EVIDENCE.
Court-Martial Trial Practice Blog
