Court-Martial Trial Practice Blog

Worth the read for your weekend

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

“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week. I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity. Without going in to all of the facts, here are a few I thought relevant.

The CW had dropped her phone in the bath tub and it was no longer available for forensic examination. In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in. I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.

Social media as evidence

January 5, 2015 | The Law Office of Philip D. Cave

Professor Colin Miller has published two timely and important essays related to the introduction of social media evidence for its truth.

Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, 71 Wash. & Lee L. Rev. Online 180 (2014). Here is the abstract:

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

Worth the read for a coming weekend

January 3, 2015 | The Law Office of Philip D. Cave

In Founding Myths: Stories That Hide Our Patriotic Past, by Ray Raphael, one of his issues of inaccurate historical reporting is about Paul Revere. The book is incisive, well-written, and well worth the read.

So it is in this context that I mention Michael Greenberg’s, The Court-Martial of Paul Revere: A Son of Liberty and America’s Forgotten Military Disaster, published in late 2014.

Lieutenant Colonel Revere defended himself against accusations of dereliction and disobedience. At trial he “confessed that he had initially disobeyed an order to deliver a barge to the general in charge, but once he remembered that General Wadsworth was his leader, he delivered the barge.” The disobedience sounds more serious – “On the question of leaving the area without orders to do so, Revere testified that there was such a state of confusion he shouldn’t have been expected to do otherwise.” Revere was found not guilty. From then began a long public relations campaign to restore his reputation – something accomplished by the time of his death in 1818 apparently.

An important reminder of what is inconsistent

December 26, 2014 | The Law Office of Philip D. Cave

If a witness testifies at trial the traffic light was red, the accused may ask if they told the police officer the light was green. And, depending on the answer the accused may offer extrinsic evidence of the inconsistency. This is a clear prior inconsistent statement. Usually there is no trouble identifying the issue. But what happens if the witness says I don’t remember, or is vague, evasive or something else?

The NMCCA has an unpublished opinion in United States v. Corcoran, which should be read for a fuller and better reminder of when a witness may be impeached with a prior inconsistent statement, and most importantly when extrinsic evidence may be offered.

In United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007). The court talked about the process of impeachment by prior inconsistent statement. It is a tool to question the witness and “By showing self-contradiction, the witness can be discredited as a person capable of error.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983). M.R.E. 613(b) allows extrinsic evidence of a prior inconsistent statement if the witness has been first given a chance to explain or deny the statement. Keep in mind that there can be no extrinsic evidence if the witness admits making the prior inconsistent statement. United States v. Gibson, 39 M.J. 319, 324 (C.M.A. 1994).

Sexual misconduct in the Brig

December 18, 2014 | The Law Office of Philip D. Cave

The Marine Corps Times reports the court-martial conviction of a female guard at Miramar Naval Consolidated Brig, CA.

Kohlman’s misconduct came to light when the prisoner, Shane Bardes, came forward last year with a detailed statement alleging she and other guards had taken advantage of his status as a prisoner to engage in various acts of sexual misconduct with him. His allegations — along with claims that his pleas for help were ignored by those in charge — were the subject of a November 2013 Marine Corps Times cover story.

One of the unnoticed issues surrounding military sexual assaults, actually sexually assaults in general is the likely frequency of female on male sexual assault. In the case of the Brig “power” might be the motivating factor. Interestingly this issue of abuse of power and rank and status is raised quite frequently with drill instructors, recruiters, and leaders. The issue gets very little attention when it involves a female accused. A cynic might argue that’s because the current attention is focussed on sexual assault as a gender crime rather than on the crime; who commits the offense – men – is the meme.

Military justice humour

December 17, 2014 | The Law Office of Philip D. Cave

For your calendar

December 15, 2014 | The Law Office of Philip D. Cave

At the 2015 Innocence Summit, the nation’s leading prosecutors, researchers, defense attorneys, citizen activists, exonerees, and others will come together to debate how the Innocence Movement can overcome old obstacles and achieve new successes.

Theme: Forging Best Practices for Innocence Reform

Why: Because our criminal justice system needs to apply evidence-based best practices in order to stop wrongful convictions and restore the presumption of innocence

NIMJ writing awards

December 11, 2014 | The Law Office of Philip D. Cave

Please see the NIMJ announcement of the Barry and Jenkins writing awards at this link.

Kevin J. Barry Award for Excellence in Military Legal Studies.

This award recognizes an outstanding article published in an academic or professional journal, and honors the memory of an outstanding scholar and peerless advocate of reform: Kevin J. Barry, a founder and longtime director of NIMJ.

NCIS chief interviewed

December 2, 2014 | The Law Office of Philip D. Cave

Navy Times recently interviewed the Director of NCIS. Here is a question I found interesting and thought I’d share.

Q. There have been a number of recent cases in which inspector general investigations concluded NCIS agents weren’t following procedures. What are you doing to improve that?

A. I think if we have needed to we have tightened up quite a bit. I will give you an example: Some of the things we were cited for were actually minor deficiencies or violations of our own internal policies.

Up periscope under the radar

November 24, 2014 | The Law Office of Philip D. Cave

On 29 August 2014, the Inspector General, U.S. Department of Defense issue a report, Evaluation of DoD Compliance with the Sex Offender Registration and Notification Act.

In connection with the U.S. sex offender registry’s, there is now quite a robust amount of research that seems to label the idea as ineffective. The worst of the worst are likely to commit similar crimes whether or not they are on a registry and under watch. Fairly regular news reports provide anecdotal support for such a conclusion. As for the rest, statistics show that sex offenders have a much lower recidivism rate than non-sex offenders. In addition, there is a question about the basic effectiveness of such laws; as reported in Science Daily, and The Economist, and in a study conducted by the U.S. Department of Justice, National Criminal Justice Reference Service, in a limited study of South Carolina’s laws. The criticisms do not suggest no value to such registry’s, rather a more precise and reasoned approach. You might read a pro-con discussion about sex offender registration policy sponsored by the Federalist Society. Science Daily notes,