Court-Martial Trial Practice Blog

Confrontation on court records

March 27, 2013 | The Law Office of Philip D. Cave

Occasionally the prosecution wants to use court records,

There is an evidentiary exception that can apply. But, what about the Confrontation Clause? Federalevidence review has a post on that.

Eighth Circuit reverses conviction for being an accessory after the fact by assisting another (Clark) in avoiding apprehension for committing a murder based on Confrontation Clause violation resulting from the introduction of a Court Minute Entry (of “Clark’s guilty plea as conclusive proof that” he had committed the offense) and without an opportunity to cross-examine the declarants about the statements, in United States v. Head, _ F.3d _ (8th Cir. March 1, 2013) (No. 12-2625).

Appellate judicial notice

March 24, 2013 | The Law Office of Philip D. Cave

The general rule is that you are stuck with the record on appeal and can’t supplement it with new or additional facts.

There are however some limited exceptions to the general rule for items of appellate judicial notice. Here is a short piece discussing some of the exceptions.

An example from military appeals:

Intoxiliezer

March 23, 2013 | The Law Office of Philip D. Cave

The various breath test instruments used by the military and civilian police are subject to challenge, for a number of reasons.

Here’s a “report” about the Intoxilyzer 8000 courtesy of PS.

Of course they are nervous

March 16, 2013 | The Law Office of Philip D. Cave

Prosecutors ask CID, NCIS, OSI, CGIS agents all the time why they didn’t believe the accused in the interrogation. The answer often is a variant of, “he was nervous.”

Yeah, right.

First they are told and usually escorted to the LE office. The escort won’t tell them why or what’s going on. They then have to wait the appropriate time in the waiting area to heighten the tension. I was reminded of this by a post from fourth amendment blog.

Worth the read

March 15, 2013 | The Law Office of Philip D. Cave

http://www.denverda.org/dna/DNA_Nonhuman.htm

Thanks to BW, who shall remain otherwise anonymous.

Prior inconsistent

March 14, 2013 | The Law Office of Philip D. Cave

The Rule in Queen Caroline’s case is inconsistent with the present intent of Mil. R. Avid. 613(b). But the rule is still applied (IMHE) in courts-martials and in a split of federal circuits. We may be headed back in time.

Schaffzin on the Return of the Rule in Queen Caroline’s Case

Katharine Traylor Schaffzin (University of Memphis – Cecil C. Humphreys School of Law) has posted Sweet Caroline: The Backslide from Federal Rule of Evidence 613(b) to the Rule in Queen Caroline’s Case on SSRN. Here is the abstract:

Unpublished opinions

March 6, 2013 | The Law Office of Philip D. Cave

Opinions, published and unpublished.

A nice discussion of judicial opinions in military cases can be found at

United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).

Improper trial counsel argument

March 4, 2013 | The Law Office of Philip D. Cave

We’ve seen some recent cases discussing the issue of over zealous argument by trial counsel on the merits. What to do, oh what to do.

How about object!

And,

Got a forensic science issue

March 3, 2013 | The Law Office of Philip D. Cave

NATIONAL CLEARINGHOUSE FOR SCIENCE, TECHNOLOGY & THE LAW
at
Stetson University College of Law

“SHARING KNOWLEDGE TO PROMOTE JUSTICE”

The relationship between law and science and technology has been called both an essential alliance and a reluctant embrace, Sheila Jasanoff, Science at the Bar: Law, Science and Technology in America (1996).

Instructions-withdrawal from a conspiracy

March 2, 2013 | The Law Office of Philip D. Cave

Federal Evidence Review alerts us that:

The Seventh Circuit is the first circuit to publish revised jury instructions based on the recent ruling Supreme Court ruling clarifying the burden to withdraw from a conspiracy in Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), which abrogated prior Seventh Circuit cases on the issue

On January 9, 2013, the Supreme Court issued a unanimous decision clarifying the burden of proof to establish withdrawal from a conspiracy. In a decision authored by Justice Antonin Scalia, the Court held that the defendant holds the burden to prove withdrawal and the government does not bear any burden to disprove withdrawal. See Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013). The ruling resolved a split on the issue among the circuits.