Court-Martial Trial Practice

Here is a cheat sheet for character evidence under the Federal Rules of Evidence.

Because rather than punish prosecutors, the courts shift the burden to the defense and provide excuses for the prosecutors.

Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule
Kate Weisburd, 60 UCLA L. Rev. 138.

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

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.

Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes

Aviva Orenstein

Indiana University Mauer School of Law

Tamara Rice Lave

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.