In preparing the petition for Schloff, we looked to the amount of cases coming through the system related to prosecutions under UCMJ art. 120.
The Army is “reporting” about 60% of cases for last year were sexual assault/120 cases. We have not been able to gain similar “information” from the Air Force or Department of the Navy. Anyone know?
How many times do we see the private search as an issue. The upset spouse searches the computer to find evidence of infidelity, the Sailor’s friend or roommate comes across contraband CP on a computer and looks further, etc., etc., etc.
A responsible law enforcer would take the information to get a search warrant or command search authorization. But that doesn’t always happen. What does happen is that the law enforcer or someone in command goes and looks for themselves. The question then becomes whether that is a search or is it a continuation of a private search. If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search. But what happens if the law enforcer does more than strictly replicate what the private searcher did. So Orin Kerr has some information for us in the Washington Post.
[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.
The Washington Post has an article by Orin Kerr on a report in the New York Times about a bill introduced in Congress to change or clarify the “mens rea” required in federal criminal statutes. I probably should not comment on where the proposal may have come from. It is proposed that:
§ 11. Default state of mind proof requirement in Federal criminal cases
If no state of mind is required by law for a Federal criminal offense—
On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.
There are two questions presented.
(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and
The petition for a writ of certiorari has been filed in Sullivan v. United States, CGCMG 0285 (C.G. Ct. Crim. App. 25 September 2014)(unpub.), 74 M.J. 448 (C.A.A.F. 2014).
We all laugh at TV shows and movies which we think of as fantasy. The CSI shows, NCIS, JAG, among . We ..get a laugh out of them. But reality may make you cry.
Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice. Boston Review, November 16, 2015.
This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.
My title is the title of an excellent article in the Air Force Reporter by Thomas G. Becker.
Mr. Becker takes on the amount of damage done to military justice and the truth-seeking process because of the changes to Article 32 proceedings.
“[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”
In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.
There are many problems with this opinion.
He notes that:
The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.
He notes then the general purpose behind evidence such as DNA results.
The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches. The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401? To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place.
Indeed, as the FBI itself states:
Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault. This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.
Well, that doesn’t take care of the issue about the potential crime involved. If the recording is done with knowledge and consent, that probably is defensible. But what if it isn’t. Many states now have statutes prohibiting unknowing or nonconsensual recordings. As does the federal government in 18 U.S.C. 2251(a). Now what.
See United States v. Palomino-Coronado, a decision of the Fourth.
This reports Military.com:
A civilian professor at the U.S. Naval Academy is suing the Navy, accusing it of violating his First Amendment right to free speech and chilling academic freedom.
Court-Martial Trial Practice Blog
