Court-Martial Trial Practice Blog

Worth the Read-Brady issues

July 19, 2015 | The Law Office of Philip D. Cave

Brady Reconstructed: An Overdue Expansion of Rights and Remedies

Leonard Sosnov

Widener University – School of Law

Worth the Read

July 16, 2015 | The Law Office of Philip D. Cave

New Developments in Criminal Law: Child Pornography and Appellate Review, by MAJ Jeremy Stephens.

THE ABUSE OF DISCRETION STANDARD OF REVIEW IN MILITARY JUSTICE APPEALS, by COLONEL JEREMY STONE WEBER.

Motive to fabricate-a short explanation

July 16, 2015 | The Law Office of Philip D. Cave

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance. The recent case of Nappi v. Yelich, from the Tenth highlights that.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.” Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . .. To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects. Davis, 415 U.S. at 316. But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.” Id. at 316‐17.

The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

Worth the Read–Cellphones

July 15, 2015 | The Law Office of Philip D. Cave

Protecting the Privacies of Digital Life: Riley v. California, the Fourth Amendment’s Particularity Requirement, and Search Protocols for Cell Phone Search Warrants

William Clark, Boston College, Law School, Students

June 30, 2015

Interesting reading on drunk sex accusations

July 15, 2015 | The Law Office of Philip D. Cave

http://www.theamericanconservative.com/dreher/too-drunk-to-have-sex/

http://www.slate.com/articles/double_x/doublex/2015/02/drunk_sex_on_campus_universities_are_struggling_to_determine_when_intoxicated.html

Of course the danger for men in particular is enhanced by the fraud propagated during sexual assault training that one drink means no consent. I think it fair to call this aspect of training a fraud because it is medically and legally false. And, in my view knowingly so.

An interesting civil action

July 15, 2015 | The Law Office of Philip D. Cave

Doe v. Regents of the University of Southern California San Diego

While the Court respects the university’s determination to address sexual abuse and violence on its campus, after reviewing the Administrative Record, the Court finds that in this particularly case, the hearing against petitioner was unfair.

New CAAF grant

July 14, 2015 | The Law Office of Philip D. Cave

No. 15-0664/AF. U.S. v. Sean J. Chero. CCA 38470. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE CONCLUDED APPELLANT’S MAXIMUM PUNISHMENT WAS 30 YEARS CONFINEMENT, TOTAL FORFEITURES AND A DISHONORABLE DISCHARGE.

No briefs will be filed under Rule 25.

New CAAF grant

July 11, 2015 | The Law Office of Philip D. Cave

No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE FINDING OF GUILTY FOR CHARGE I AND ITS SPECIFICATION FOR COMMUNICATING A THREAT IS LEGALLY INSUFFICIENT BECAUSE THE COMMENTS ARE CONSTITUTIONALLY PROTECTED AND DO NOT CONSTITUTE A THREAT UNDER THE TOTALITY OF THE CIRCUMSTANCES AND IN LIGHT OF THE SUPREME COURT’S DECISION IN ELONIS v. UNITED STATES, 575 U.S. __, 135 S. Ct. 2001 (2015).