The potential impact of Padilla v. Kentucky is ongoing. Two primary issues.
Is the holding retroactive. The Supremes have that issue before it.
Does Padilla extend the defense counsel obligations beyond immigration consequences?
A new piece on this difficult subject.
Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research
Here is an interesting little piece.
The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense. Instead, efforts to counter violence should focus on prevention and mitigation of the threat.
The DSB was created and tasked in response to MAJ Hasan and the Fort Hood shootings. But does the report have important learning points in regard to sexual assault prevention.
on court-martial convictions.
Here is another case in which a military prisoner has attempted to litigate his trial, and been denied.
Faison v. Belcher (the former Commandant, USDB).
The constitutionality of Article 119a, UCMJ, may be headed back to CAAF. But there is no guarantee CAAF will grant a petition.
AFCCA has decided United States v. Cooper. In a short opinion relying on United States v. Boie, 70 M.J. 585 (A.F. Ct. Crim. App. 2011), pet. denied 70 M.J. 416 (C.A.A.F. 2011), the court rejects the constitutional challenge. In Boie the court reviews the status of similar laws around the country.
Indiana University Mauer School of Law
University of Miami, School of Law
September 7, 2012
Indiana Legal Studies Research Paper No. 209
University of Cincinnati Law Review, Forthcoming
Abstract:
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused’s prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence. Most critiques of the sex-propensity Rules concentrate on the unfairness part of the Rule 403 equation, but we approach them in a novel way, focusing instead on the absence of empirical support for their so-called probative value. This article examines the empirical support for the probative value of such evidence, revealing that current policy rests on bogus psychology and false empirical assertions. Rules 413-414 typify the regrettable seat-of-the-pants psychologizing on which evidence rule drafters rely too often; the approach eschews a nuanced approach to questions of recidivism and the different types of sex offenders. We argue that rulemakers should look to the disciplines engaged in the empirical study of perpetrator behavior before asserting notions of deviance and recidivism to justify radical changes to evidence law. Finally, we offer specific guidance to judges about how to conceptualize the probative value of evidence of prior sexual misconduct and how to incorporate this knowledge in applying their discretion in admitting sex-crime propensity evidence.
Thanks to Prof. Berman TG, here is a resource for collateral consequences of a conviction.
Unfortunately there are only nine state jurisdictions and federal filled in – a ways to go on a useful project.
Another place to look is SentencingProject.org. (Note, it will be necessary to “sherardize.”) , or
The CAAF held that there is no right of confrontation at sentencing. The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do). United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000).
The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review. Here is the abstract:
After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.
As Prof. Colin Miller TG points out in a new post, Fed. R. Evid. 804(b)(6), applies to both sides. The Mil. R. Evid. contains the same language.
For an example of a case in which the government forfeited its right to object to the defendant’s admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).
Prof. Miller concludes:
“With respect to deviations from the model instructions in the Benchbook, we note that the military judge was not required to follow literally the non-binding examples therein. SeeUnited States v. Bigelow, 57 M.J. 64, 67 (C.A.A.F. 2002).”
United States v. Simpson, 58 M.J. 368, 378 (C.A.A.F. 2003).
Court-Martial Trial Practice Blog
