Court-Martial Trial Practice

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.

Here’s a question.  Is it harder for a commander to engage in UCI before of the information age – for example the availability of smartphones, small recorders, and social media.

Apparently for some that may a yes.

Former Top Officers Say Internet Age Limits Meddling in Sexual Assault Cases.

The Heritage Foundation

January 13, 2014

One of my favorite bloggers, Professor Colin Miller has this:

Arizona Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if…[t]he declarant testifies at the trial or hearing…and is subject to cross-examination concerning the statement, and the statement is…inconsistent with the declarant’s testimony

No. 14-0134/AR.  U.S. v. Brett M. GASKILL.  CCA 20110028.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), we note that the proper victim in Specifications 2, 3, and 4 of Charge V was the merchant who provided the goods and services upon false pretenses, not the debit cardholder/Soldier.  However, the charge sheet, stipulation of fact, and providence inquiry focused on the three Soldiers as victims, and there was no discussion on the record of whether the merchants were victimized.  See Lubasky, 68 M.J. at 263.  Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF THREE SOLDIERS BY USING THEIR BANK CARDS WITHOUT AUTHORITY.

The decision of the United States Army Court of Criminal Appeals is reversed as to Specifications 2, 3, and 4 of Charge V, and the findings of guilty as to those specifications are set aside.  The remaining findings are affirmed.  The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals.  That court may either dismiss Specifications 2, 3, and 4 of Charge V and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specifications and the sentence.

The CAAF has decided United States v. Moss.

The decision involves jurisdiction to appeal to CAAF for a Soldier who was AWOL at trial, apparently AWOL at the time the case was heard at ACCA, and AWOL at the time her appellate defense counsel petitioned CAAF.

Read the case.  It may be wise for trial defense counsel to amend the standard pre-trial advice of appellate rights to fit into the Moss decision.

SCOTUSBlog notes the following criminal law related petitions at the Court which may – or may not – be granted tomorrow.

Warger v. Shauers

13-517