Court-Martial Trial Practice Blog

There is an impact

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

Congress, commanders, and others ignore the effects of false sexual assault allegations. They don’t fit the meme. They are quite willing and happy to ignore such happenings or possible happenings.

16-year-old commits suicide after being falsely branded a rapist by drug-dealing gang. A schoolboy hanged himself after he was falsely branded a rapist by fellow pupils after pulling out of a playground drug dealing racket, an inquest heard.

Have wrongly military accused’s committed suicide as a result of false allegations – I know of at least one, and one possible one. My colleagues know of others.

On consent to sexual activity

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

Capacity to Consent to Sexual Risk, Elaine Craig, Dalhousie University – Schulich School of Law, 2013

Abstract:

Some evidence notes

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

Consistent with military law, the federal circuits generally follow the principle that evidentiary errors in a judge alone case are often nonprejudicial. The basic theory being that judges are presumed to know and apply the law, and will ignore impermissible evidence even where there has been no objection.

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a “presumption of conscientiousness” in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that “had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence,” in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701).

On a side note to this case, another caution regarding “talismanic incantations” of admissibility of other acts evidence.

Still in flux?

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

There should be a reassessment and there should be “amended” rules for how cell phones, tablets, and computers are searched.

Accessibility to computers and cellphones created an extraordinary change in how we communicate, and in particular how we retain and store private information about those communications. Along with the nature of the communications, the ability to retrieve that private information has also dramatically changed. No longer do we put a paper copy of a letter in a file folder and cabinet in our home. Often we carry a digital copies of that letter in our pocket, a cellphone holster, a tablet, and a laptop computer.

In the first of several posts Orin Kerr addresses the Supremes on cellphones: “The need for computer-specific Fourth Amendment rules in the cell phone search cases.”

It’s a privilege

March 29, 2014 | The Law Office of Philip D. Cave

I’ve not heard the awesome power of de novo review discussed this way.

On the basis of the entire record we cannot find that the court was wrong as a matter of law in finding an intention to desert. We are, however, by Article 66(c) of the Code privileged to say that we differ from the court in finding as a fact whether such intention existed. We determine that it did not.

United States v. Bolish, 12 C.M.R. 649 (C.G.C.M.R. 1953).

Trial craft

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

Brother Bill sent me a link to this Onion piece.

http://www.theonion.com/articles/partially-faded-hand-stamp-undermining-everything,30790/

It is a good teaching tool for those of us who go to court and actually try cases in front of members.

Worth the read

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

Click to access US.v.Boyce.pdf

Comment on silence

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

Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection. Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments. This is a particular bugaboo of my when LE agents and trial counsel stray from the correct path. This involves judgment and discretion on whether to object.

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)

It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Prior false reports?

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

“CCTV footage taken at the time of the earlier incident showed the woman walking arm-in-arm with a man, and she later conceded she made the false report because she “regretted” her contact with him.”

Yes, people do lie for what seems a silly reason. And yet the person lied on can end up in jail.

Keeping up

March 3, 2014 | The Law Office of Philip D. Cave

There a various ways to keep up with the law, politics, and policy surrounding military justice, or legal issues in general.

You can use Goodle news. This allows you to have various news items collated on the Google News website. So for example, one of my several “search terms” is “military sexual assault. Google also allows you to get email alerts for the same or more specific searches, for example, “Sinclair military sexual assault.”

I use Chrome as my browser – there are many good reasons to use Chrome in lieu of IE.