In all of the political and policy discourse about sexual assaults little if any attention is given to sexual assaults committed by women, usually on men.
Here is an interesting article about the “discussion” about prison sexual assault. Can the same be said for non prison sexual assault views.
Engendering Rape
I was thinking this morning about issues that a trial defense counsel ought to be aware of and/or know about for appeals.
This evening I got a VACLE “tip,” entitled, Did You Know? What’s the most common reason arguments on appeal are not heard on the merits? The following was included.
Proffer excluded testimony and exhibits for the record: One of the least understood practices essential to preserving error concerns proffers. If testimony is excluded, the appellate court generally cannot address an appeal on that point unless the party offering the testimony proffers the testimony so that it is part of the record. Likewise, exhibits that are excluded need to be marked “excluded” and included in the record, and the offering party must demonstrate in the record not only an objection to the exclusion but the reasons supporting the objection.
Several items of interest.
Army Times reports: The first female soldier to flee the U.S. military for Canada to avoid the war in Iraq has been ordered deported, a spokeswoman for the War Resisters Support Campaign said Thursday.
On the home grown terrorism front Air Force Times reports:
Result – statements suppressed, and will be in the 9th because of Sessoms v. Runnels, No. 08-17790, 2012 U.S. App. LEXIS 17206 (9th Cir. 2012) Wow. What about Davis v. United States?
Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights. So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.
Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and Berghuis remains: Sessoms made his statements before he was informed of his rights under Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).
Federalevidence.com has this piece on about juries and social media, and a discussion of the model jury instruction.
They also link to an interesting 22 November 2011 Federal Judicial Center report .
The use of social media by jurors during trials and deliberations is not a common occurrence. Of the 508 judges who responded to the survey, only 30 judges (6%) reported any detected instances of jurors using social media during trial and deliberation[.]
The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798).
Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Occasionally there is a case involving bite mark evidence and testimony. This type of testimony is subject to challenge under Houser. Here I am talking about a case where the bite mark testimony goes to prove the identity of the accused.
So, to that end the defense needs resources to challenge admissibility of the evidence under Houser and also to evaluate and challenge evidence if it is admitted by the military judge.
THE INNOCENCE PROJECT (IP) is a national litigation and public policy organization based in New York dedicated to exonerating wrongfully convicted individuals through DNA and reforming the criminal justice system to prevent future injustice. As the DNA exonerations have revealed, the misapplication of forensic science has been a leading cause of wrongful convictions. The newly created Strategic Litigation unit is aimed at, among other things, eliminating junk science from courtrooms nationwide, beginning with bite mark comparison evidence. To that end, IP seeks to partner with an attorney(s) on criminal cases involving bite mark comparison. Attorneys with cases meeting the following criteria should contact IP directly.
I have already posted about IAC prior to trial in connection with GP’s.
Here’s a case, Ostrander v. Green, 46 F.3d 347 (4th Cir. 1995) – from the Fourth no less — that is very interesting because it makes clear there is a different standard of review that Strickland.
In its first opinion, the district court applied the wrong legal standard to Ostrander’s ineffective assistance claim. It used the Strickland v. Washington[, 466 U.S. 668 (1984),] test instead of the more specific Hill v. Lockhart[, 474 U.S. 52 (1985),] standard for guilty pleas induced by ineffective assistance. There is a significant difference between the tests. Under Strickland, the defendant shows prejudice if, but for counsel’s poor performance, there is a reasonable probability that the outcome of the entire proceeding would have been different. Under Hill, the defendant must show merely that there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial.
Adam A. Field, Beyond Michigan v. Bryant: A Practicable Approach to Testimonial Hearsay and Ongoing Emergencies, 2012 IL. L. Rev. 1265 (2012).
Court-Martial Trial Practice Blog
