Court-Martial Trial Practice

Why do we ask members to promise that they will do the impossible?

This is a question raised in a recent The Jury Expert.

Jurors often promise to try their best to set aside prior experiences, attitudes or beliefs. But the desire to do what jurors believe is expected of them does not create the ability to do it. These factors can be reliably “set aside” only when the juror has no need to do so because the juror doesn’t view them as relevant to the case. If the juror perceives a prior experience, attitude, or belief as relevant, research demonstrates it will have some influence on the juror’s decision making by being part of the schema used to evaluate the evidence. Note that the juror’s perception of relevance is the only test that matters here. While attorneys and judges can help jurors make that assessment by clarifying what is or is not involved in the case, their own definitions of relevance are usually not shared by the jurors.

The Forensics Science Standards Act 2012.

Stalled?  Nope, gone.

The Forensic Science and Standards Act of 2014

Just in over the transom from a very reliable colleague.

A TC told him that the defense is not allowed to have a copy of the SJA pretrial advice because it is a privileged communication.  Apparently the TC is not familiar with the rules – not uncommon.  I do wish they’d read that red paper covered book sometimes.  Strangely, R.C.M. 405(c) contains this language.

(c) Distribution. A copy of the advice of the staff judge advocate shall be provided to the defense if charges are referred to trial by general court-martial  (emphasis added).

We are told, by the U.S. Supreme Court no less that sex offender registration is a collateral consequence not punishment so does not suffer ex-post facto restraints.  United States v. Kebodoux involves a military person convicted at SPCM.  And within the military we have case law.

But, can registration reach a point where it is in fact punitive.  That’s the point of Prof. Corey Yung’s post here.

[T]he farm bill just signed into law by President Obama includes a provision denying food stamps to certain sex offenders. The provision was inserted by Senator Vitter (who ironically might be a “sex offender” who wasn’t prosecuted for hiring prostitutes) and applies to child molesters and those who commit violent sexual assaults. Notably, there are already bans on drug offenders participating in the program because there is a fear that they might trade food stamps for drugs. For sex offenders, however, it is difficult to think of any non-punitive justification for denying food stamps to sex offenders convicted before enactment of the current law. Even though the courts have bent over backwards to find various restrictions on sex offenders constitutional, it is hard to fathom a theory that would allow the Vitter amendment to be constitutionally applied to those with pre-existing convictions for sex crimes.

It’s not a surprise that now the “war” need for flesh and blood is lower, that the size of the force will be lower, and that allegations of misconduct will be a reason for getting below the numbers.

Stars and Stripes has this report.

 The number of U.S. soldiers forced out of the Army because of crimes or misconduct has soared in the past several years as the military emerges from a decade of war that put a greater focus on battle competence than on character.

Another excellent blogger to follow has this post today.

D.Or.: Reasonable expectation of privacy in prescription records, and the third party doctrine does not apply to them

Several items came across the transom today related to my constant meme about the dangers of bias and confirmation bias in investigations and by “forensic” scientists.

First item is a blog at Criminal Law Practitioner, which notes a significant and important change in how photographic line-ups are conducted in Prince Georges County, MD.  This is a potential issue in any number of CID, NCIS, OSI, CGIS, investigations.

On February 9, 2014, the Prince George’s County Police Department (MD) announced that it will start conducting photo lineups using the “double-blind” method.  The new changes will require police officers to institute two safeguards when showing eyewitnesses a photo lineup: (1) police officers must show the witness the photos one at a time, rather than all at once; and (2) the police officer showing the photos must be unfamiliar with the case.  The change is part of an effort to minimize false identifications and subsequently, wrongful convictions.  The accuracy of photo lineups has been a hot topic over the past decade as DNA evidence has been used more frequently to overturn convictions.  A recent study by the innocence project found that eyewitness misidentification plays a role in over 75% of convictions overturned by DNA testing, making it the single greatest cause of wrongful convictions nationwide.

Many years ago I bought a small book, “How to lie with statistics,” by Darrell Huff.  I see that a newer edition (1993) is available at Amazon.  The edition I have is more in the form of a primer, without a lot of detail, but you can get the point.  A reviewer states:

“There is terror in numbers,” writes Darrell Huff in How to Lie with Statistics. And nowhere does this terror translate to blind acceptance of authority more than in the slippery world of averages, correlations, graphs, and trends. Huff sought to break through “the daze that follows the collision of statistics with the human mind” with this slim volume, first published in 1954. The book remains relevant as a wake-up call for people unaccustomed to examining the endless flow of numbers pouring from Wall Street, Madison Avenue, and everywhere else someone has an axe to grind, a point to prove, or a product to sell. “The secret language of statistics, so appealing in a fact-minded culture, is employed to sensationalize, inflate, confuse, and oversimplify,” warns Huff.

Well of course we have seen a lot of discussion recently about sexual assault statistics, the prevalence or lack thereof of false complaints, etc., etc., etc.  Along comes Peter Donnelly.

Massive round-up of new law articles, covering privacy, Fourth Amendment, GPS, cell site, cybercrime, big data, revenge porn, drones, and more from

This item is in the latest issue of the FBI Law Enforcement Bulletin.

Christian Mason, Tod W. Burke, Ph.D., and Stephen S. Owen, Ph.D., Responding to Persons with Mental Illness:  Can Screening Checklists Aid Law Enforcement?

You encounter clients who may have a definable disorder or witnesses.