Court-Martial Trial Practice Blog

Humor in uniform

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

I was over at ACCA today for the oral argument in United States v. Martin.

As best I could tell CPT Martin was really drunk at the time of the alleged offenses. A cab driver who dropped him off apparently testified that “he was the most drunk person he’s ever seen,” or words to that effect. The gate guard said that “he could have been knocked over with a finger push,” or words to that effect. And there was testimony that he could have been around a 2.5.

So, one of the judges asks appellate government counsel various questions about the appellant’s state of intoxication. Naturally the government was downplaying it because the argument was he was too drunk to form a specific intent for attempted rape. Eventually the judge asked if the appellant had been a complaining witness of sexual assault, would he have been drunk enough for a substantial incapacitation charge.

National Prosecution Standards

January 14, 2014 | The Law Office of Philip D. Cave

1. The Prosecutor’s Responsibilities

1-1.1 Primary Responsibility

The prosecutor is an independent administrator of justice. The primary responsibility of a

A little more on forensics

January 14, 2014 | The Law Office of Philip D. Cave

It is unusual in military cases to have evidence of microscopic hair analysis. But, it’s worth keeping up on, just in case. Also, the point below is further substantiation of the National Academy of Sciences critique of forensic “science” evidence. A 2009 news release on the NSA report had this to say:

A congressionally mandated report from the National Research Council finds serious deficiencies in the nation’s forensic science system and calls for major reforms and new research. Rigorous and mandatory certification programs for forensic scientists are currently lacking, the report says, as are strong standards and protocols for analyzing and reporting on evidence. And there is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic methods. Moreover, many forensic science labs are underfunded, understaffed, and have no effective oversight.

Interestingly, in April 2009, before the NSA report was released, the FBI published a short piece about hair examination, which seems to support the reliability of MHE.

I don’t remember

January 12, 2014 | The Law Office of Philip D. Cave

The ACCA has issued an unpublished opinion in United States v. Barnes.

We all of us have dealt with the client who wants to – and should – plead guilty to some offenses, but he tells you he was so drunk at the time he remembers nothing, or at least very little. Now what, can he be provident.

The basic answer is yes. We have the general principle:

You got mail*

January 10, 2014 | The Law Office of Philip D. Cave

In my view it’s all too easy for emails to be authenticated in courts.

Emails can be spammed, altered, and a lot of other things, including cut-and-paste which is all too common.

Here is a note from Prof. Colin Miller about a case* in Texas that appears to take a somewhat decent approach in questioning how easy it is to fake or manipulate emails “printouts.”

More like them

January 10, 2014 | The Law Office of Philip D. Cave

This article takes a closer look at the Duke Rape Case by analyzing the book Institutional Failures, a collection of essays that testifies to the immense damage wrought by the failure of three systems of control: the University, by failing to protect its students from a mob demanding quick justice; the media, when it reflexively bought the narrative of pampered white students run amok; and the criminal justice system, when it failed to accord the defendants the basic protections offered by North Carolina rules of criminal procedure. The author aims to clarify the contribution this book makes to an understanding of the case.

Dan Subotnik, The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System (45 Akron L. Rev. 883 (2012).

Labs again?

January 5, 2014 | The Law Office of Philip D. Cave

The nation’s crime labs are no strangers to scandal. Last year in Massachusetts, bogus testing by former chemist Annie Dookhan called into question tens of thousands of cases and led to the release of more than 300 people from the state’s prisons.

There are currently no uniform standards or regulations for forensic labs. Congress could take up legislation this year to improve oversight, but critics are skeptical.

http://www.npr.org/2014/01/05/259392234/despite-scandals-nations-crime-labs-have-seen-little-change

It depends

December 28, 2013 | The Law Office of Philip D. Cave

it almost always does – if the error was harmless.

federal evidence review blog brings a reminder as follows:

What are the limits in which a trial court may examine witnesses under FRE 614? The Third Circuit recently assessed the boundaries of a judge’s questioning of witnesses in a case involving a defendant who represented himself at trial. Although the judge’s motivations were understandable, none-the-less the judge erred because he “abandon[ed] his proper role and assume[d] that of advocate,” in United States v. Ottaviano, __ F.3d __ (3d Cir. Dec. 24, 2013) (Nos. 11–4553, 13–1119)

State dependent

December 26, 2013 | The Law Office of Philip D. Cave

Intriguing. Does military search and seizure depend upon and have to follow state law, even if it is a “federal” officer doing the searching and seizing?

This Article argues for a model of the Fourth Amendment – the contingent Fourth Amendment – that courts and commentators have overlooked. It asserts that the only common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules were to be dictated by state law, even when it was a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.

Michael Mannheimer, The Contingent Fourth Amendment, Northern Kentucky University – Salmon P. Chase College of Law, December 11, 2013

A cautionary tale

December 26, 2013 | The Law Office of Philip D. Cave

The ever sentient Prof. Colin Miller brings us a good reminder to be careful, at his evidence prof blog.

Federal Rule of Evidence 410(a)(4) states as follows:

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:….