Court-Martial Trial Practice

Article 10, UCMJ, may be dead.  But there is still activity on the Sixth Amendment confrontation front.

Here’s an interesting case dredged up by federal evidence review blog about a 40 year old affidavit and its treatment under the Sixth.

Fifth Circuit reverses conviction after the government failed to meet its burden to show that an affidavit was non-testimonial under theConfrontation Clause under the Supreme Court’s “primary purpose” test; circuit also rejects proposed accusatory test as lacking support in precedent or in the text of the Sixth Amendment, in United States v. Duron-Caldera, _ F.3d _ (5th Cir. Dec. 16, 2013) (No. 12-50738)

I was reminded the other day when working on an appellate case of a toolbox item worth the read.

I often review TJAGSA teaching materials when working on a case.  I used to also look at NJS materials, but for some reason they are no longer available to the general public through the various Navy websites.  Even experienced practitioners should consult the TJAGSA materials for at least two reasons:  they can be a helpful start to understanding or identifying an issue, and they likely predict a prosecution response.  Both sides should review the materials, but as I caution a defense counsel they should remember it is the school solution so more likely government biased.

Anyway, we frequently face prosecutions under federal law charged as an Article 134, UCMJ, violation.

People have been all over the place in terms of like or dislike for the new SVC system the military is putting in place for sexual assault cases.  Frankly, most of what the system is doing doesn’t trouble me.

I’ve been more concerned with how it works in practice so that I can either use it to my benefit or prepare for damage control, or something.  So, last week I got to address one of my thoughts in court.

We were in a 412 motion and the complaining witness elected to be represented through counsel.

Back when I was a Magistrate Judge between 1987 and 1992, many federal prosecutors followed an “open file” policy. That is, the defense lawyer got access to the complete investigative file–everything the prosecutor had–except for legal research and the prosecutor’s outgoing correspondence. The defense lawyer was able to copy whatever the lawyer wanted. That seems sensible to me. Indeed, I would be inclined to change the Federal Rules of Criminal Procedure to require prosecutors to open their investigative files. Oh, sure, there are problems with witness intimidation or retaliation in prison and that sort of stuff. But, those problems can be dealt with. More importantly, I want snitches scared–fear serves as an antidote to lies and exaggeration (think drug quantity, for example).

So, if I were the King (and I should be), prosecutors would be required to show their investigative files to defense lawyers and allow those lawyers to copy whatever they wanted. A rule requiring complete transparency would go along away to disinfecting the germs that Chief Judge K. sees as the genesis of the plague. But, what the hell do I know?

http://herculesandtheumpire.com/2013/12/15/my-take-on-brady-violations-in-federal-court/

Judge Kopf at Hercules and the Umpire, someone you should follow, references this case in regard to “the most interesting man in the world.”

See United States v. Olsen.

Center for Prosecutor Integrity.

An Epidemic of Prosecutor Misconduct.

Prosecutor Ethics in Domestic Violence and Sexual Assault Cases

How do you get attention, you say:

Two-Thirds Of Military Supreme Court Cases Are About CP

Perhaps a little known reality is the overwhelming flow of CP appeals into the docket of the U.S. military’s highest appellate court.  About two-thirds of the docket in the U.S. Court of Appeals for the Armed Forces consists of  CP appeals.

We often have cases where medical records, mental health records, and other similarly protected records need to be provided to a TC for fowarding to the MJ for an in-camera review.

If the TC already has the records and has reviewed them, the proper approach is that the defense gets a copy of everything the TC has seen -that’s an Article 46 issue.

But, if done correctly, the records are received by the TC sealed.  But therein lies the problem.  How the records are sealed (or not sealed) can be problematic.

Another tragic tale of tears fed by OSI lies.

HONOR AND DECEPTION: A secretive Air Force program recruits academy students to inform on fellow cadets and disavows them afterward

Here’s a report about Australian military justice.

http://www.theage.com.au/comment/adf-aint-broke-dont-fix-it-20131128-2ycru.html

Unlike the US, since Solorio, the Australians defer most criminal prosecutions to the civilian courts, and they focus on true disciplinary problems.  If nothing else they get cheaper military justice.  I seem to recollect GEN Ordierno estimating $116M to stand up a MJ system that it appears Congress will soon impose.