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).
The NMCCA has issued an unpublished opinion in United States v. Belcher. This case has lessons for the defense and the prosecution.
It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators. The PTAO languished. Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.” The TC then provided the DC with a grant of immunity and order to testify. The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].” Later a PTA for 12 months was negotiated.
It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.
Here, from Prof. Berman TG at Sentencing Law & Policy is a reminder about evidence in CP cases. I think most of us already do this, and a number of prosecutors already think of this.
A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:
David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.
University of Michigan Law School
August 29, 2012
University of Michigan Law and Economics Research Paper
Abstract:
This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted. Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.
h/t Prof. Berman.
And is it possible there may be no easy nights?
1. Is he a retiree, and thus potentially subject to recall for the purpose of prosecution under the UCMJ.
Here is a Mil. L. Rev. article on Article 2(a)(4) and (6), UCMJ (2102), and check out the following:
Court-Martial Trial Practice Blog
