Court-Martial Trial Practice Blog

A broader definition of CP?

May 31, 2014 | The Law Office of Philip D. Cave

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea. However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing. And they compounded this with offering 12 images as a “sample.” This caused the military judge to reopen providency, because he found only three of the images were likely CP.

Grostefon issues win – sometimes – sort of

May 31, 2014 | The Law Office of Philip D. Cave

In United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and United States v. Quigley, 35 M.J. 345 (C.M.A. 1992), the court set out a procedure to follow when an Appellant wants to raise and issue, but appellate counsel do not think it has merit for briefing.

During my time as deputy director at Navy Appellate Defense we did an informal study of Grostefon issues and found that the appellate court would from time to time find error and sometimes grant meaningful relief.

So when you begin reading United States v. McIntosh, ARMY 20120780 (A. Ct. Crim. App. 29 ay 2014), a Grosty case, you wonder what’s in store – the usual – some may say yes.

Real and to be expected?

May 30, 2014 | The Law Office of Philip D. Cave

Real and to be expected-a natural consequence of how Congress and perhaps leadership is approaching the real and very important issue of preventing sexual assault?

Military.com reports, In Survey, Lackland DIs Rip Leaders, Fear Recruits, 29 May 2014.

A survey of basic-training instructors conducted during the worst sex scandal in Air Force history revealed a sharp distrust of senior commanders at Joint Base San Antonio-Lackland and a widespread fear of recruits.

An appeals court cannot take judicial notice of an element of the offense

May 30, 2014 | The Law Office of Philip D. Cave

The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page). The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

BLUF: We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

Confrontation confrontation

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

What are the full limits of confrontation when it comes to scientific and expert testimony.

Federal evidence blog notes:

In denying certiorari review (this week0 in eleven cases raising Confrontation Clause and expert testimony issues, for the foreseeable future the Supreme Court will not resolve a significant issue that has been dividing the lower court; it remains to be seen when the guidance urged by the lower courts will be provided.

Navy self reporting–Redux

May 28, 2014 | The Law Office of Philip D. Cave

By regulation (the U.S. Navy Regulations and the Navy’s Standard Organization and Regulations Manual (SORM), OPNAVINST 3120.32x,), the Navy required personnel to report having been arrested or prosecutions for criminal acts by civilian authorities.

In United States v. Serianne, 68 M.J.580 (N.M.Ct.Crim.App. 2009), aff’d, 69 M.J. 8 (C.A.A.F. 2010). the courts found the order unlawful, in violation of a members right against self-incrimination under the Fifth Amendment, U.S. Constitution.

In response to Serianne, the Navy issued a new order (ALNAV 049/10 dtd 21 Jul 2010; NAVADMIN 373/11, 08 December 2011.7

Enlisted retired grade-after a grade reduction event

May 27, 2014 | The Law Office of Philip D. Cave

You are an enlisted person.

1. You are reduced at Art. 15 from E-6 to E-5, you retire as an E-5. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980.

2. You are reduced at special court-martial from E-9 to E-6, you retire. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980.

3. You are reduced at special court-martial from E-7 to E-4, you have sufficient time and you are re-promoted and serve in grade as an E-6 at the time you retire. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980. Continue reading

Prosecutorial discretion

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

Prof. Colin Miller has an interesting post about prosecutorial discretion during the course of trial.

Besides getting a conviction and an appropriate sentence, a secondary gain of the prosecutor is to have the case affirmed on appeal. Affirmance means a guilty person doesn’t walk or get a new trial.

In the post Prof. Miller refers to a successful prosecution objection excluding “compelling defense evidence,” on what he terms a technicality. He closes his post:

To be expected

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

Senator Gillibrand is not happy.

Here is one of her unsubstantiated complaints. I am quite sure that some of those committing sex offenses have done so before, and with predatory behavior. But casting the vast majority of he said/she said cases as predatory men assaulting angelic waifs who can’t care for themselves is sexist and engaging in gender politics.

“More reporting is not the end game,” Gillibrand said. “Justice and removing recidivist predators from the military so they cannot commit more crimes to arrest the problem is the end game.

Human Lie Detector’s-Not!

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

Human lie detector’s not admissible, still, a strong circuit trend. This is consistent with military appellate case law.

With expert testimony admitted on a wide range of issues under FRE 702, what limits are there to expert testimony on the credibility of the defendant? As noted by the Tenth Circuit, a consensus in disallowing this expert testimony has emerged among the circuits; plain error resulted from the admission of this expert testimony requiring reversal of the conviction, inUnited States v. Hill, _ F.3d _ (10th Cir. April 28, 2014) (No. 12-5154)

One area of expertise may involve determining whether a witness is credible. Certain specialized training and techniques have been developed to gauge the credibility of a witness during an interview. While this expertise may be useful and employed during an interview, it is generally inadmissible at trial under FRE 702. The Tenth Circuit reviewed and reinforced its exclusion of such expert testimony, finding such exclusion the practice of other circuits as well. While there was no objection lodged at trial to the expert testimony, the circuit found the admission of this expert testimony constituted plain error.