Court-Martial Trial Practice Blog

Denedo, Miller, Padilla . . .

August 17, 2012 | The Law Office of Philip D. Cave

Deciding what to advise an accused about deportation or sex offender registration is easy (isn’t it). But,

Aguilar-Turcios v. Holder, might lead to a different conclusion.

Justia.com Opinion Summary: Petitioner, a native and citizen of Honduras and a lawful permanent resident alien of the United States, petitioned for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an immigration judge’s order finding him removable as an alien convicted of an aggravated felony. At issue before the Ninth Circuit Court of Appeals was whether Petitioner’s conviction under Article 92 of the Uniform Code of Military Justice qualified as an "aggravated felony" under the modified categorical approach as explained in the Court’s recent en banc decision in United Sates v. Aguila-Montes de Oca. The Court granted the petition, concluding that Petitioner’s Article 92 conviction was not an aggravated felony and Petitioner was therefore not removable. Remanded with instructions to vacate the removal order against Petitioner.

Worth the read

August 15, 2012 | The Law Office of Philip D. Cave

1. None of the Supreme Court Justices Has Battle Experience, Andrew Cohen, The Atlantic.

This is the first of a two-part series on the Supreme Court and the military. Today’s article focuses on the military history of the men who later became justices. Part II will focus on the disconnect between the current Court and the American war effort.

2. Why Don’t the Justices Ever Visit Military Hospitals? Andrew Cohen, The Atlantic.

Fourth Amendment-2011

August 11, 2012 | The Law Office of Philip D. Cave

Here is a link to Orin Kerr’s review of Fourth Amendment cases from the 2011 SCOTUS term.

Worth the read-Scalia on reading

August 10, 2012 | The Law Office of Philip D. Cave

Justice Scalia’s new book, “Reading Law: The Interpretation of Legal Texts,” is available.

Here’s the puff piece from Amazon.

In this groundbreaking book by best-selling authors Justice Antonin Scalia and Bryan A. Garner, all the most important principles of constitutional, statutory, and contractual interpretation are systematically explained in an engaging and informative style-including several hundred illustrations from actual cases. Never before has legal interpretation been so fascinatingly explained. Both authors are individually renowned for their scintillating prose styles, and together they make even the seemingly dry subject of legal interpretation riveting. Though intended primarily for judges and the lawyers who appear before them to argue the meaning of texts, Reading Law is sound educational reading for anyone who seeks to understand how judges decide cases-or should decide cases. The book is a superb introduction to modern judicial decision-making. Justice Scalia, with 25 years of experience on the Supreme Court, is the foremost expositor of textualism in the world today. Bryan A. Garner, as editor in chief of Black’s Law Dictionary and author of Garner’s Dictionary of Legal Usage, is the most renowned expert on the language of the law. Reading Law is an essential guide to anyone who wishes to prevail in a legal argument-based on a constitution, a statute, or a contract. The book is calculated to promote valid interpretations: if you have lame arguments, you’ll deplore the book; if you have strong arguments, you’ll exalt it. But whatever your position, you’ll think about law more clearly than ever before.

Impeachment by . . .

August 5, 2012 | The Law Office of Philip D. Cave

To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that

A statement is not hearsay if:

1. The declarant testifies and is subject to cross-examination about a prior statement.

2. The declarant testified under oath at a prior “hearing” or “or proceeding.”

Is the Art of Advocacy all wrong

July 31, 2012 | The Law Office of Philip D. Cave

This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.

The authors say the book was written to document which aspects of trial advocacy lore are actually supported by the literature. They comment that:

Trial commentators are [typically] relying on ‘pop’ psychology and seldom using social and behavioral scientific research as the basis for their proposed strategies.

“Jury” matters

July 31, 2012 | The Law Office of Philip D. Cave

The July issue of The Jury Expert is now on-line. There are several items of interest to the trial practitioner.

I was always told:

Tell ‘em what you’re going to tell ‘em;
Tell ‘em;
Tell ‘em what you told ‘em;
Sit down.

Prior sexual assault allegations

July 30, 2012 | The Law Office of Philip D. Cave

In trial of defendant for sexually abusing two minors, the admissibility of evidence that victims had made false accusation of sexual abuse against others was admissible, not under FRE 403, FRE 412, or 608(b), but rather under the Sixth Amendment Right to Confrontation, in United States v. Frederick, 683 F.3d 913 (8th Cir. July 5, 2012) (No. 11-1546).

h/t federalevidence.com

We hold that the military judge improperly limited cross-examination of the prosecutrix by precluding defense questions concerning her diary, a prior false rape claim, and two prior false claims concerning her health. U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986); seeMil.R.Evid. 608(c), Manual for Courts-Martial, United States, 1984. We also hold these constitutional errors were not harmless beyond a reasonable doubt and require a rehearing. See generally Olden v. Kentucky, 488 U.S. 227, 233, 109 S. Ct. 480, 484, 102 L. Ed. 2d 513 (1988).

United States v. Bahr, 33 M.J. 228, (C.M.A. 1991).

Confinement and MRE 609(b)

July 30, 2012 | The Law Office of Philip D. Cave

Impeachment with conviction.

Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial. But if there were to be a prior conviction there may be some interpretation necessary. So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we go.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Eleventh Circuit sidestepped the most interesting issue in the case.

It was him, some more

July 30, 2012 | The Law Office of Philip D. Cave

As of July 1, the Virginia Department of Criminal Justice Services has promulgated new model policies regarding eyewitness identification, including photo line-ups, following a study that was done showing how many mistaken IDs there are. By statute, all police departments are required to have a policy regarding both live and photo line-ups 19.2-390.02, though the DCJS study found that several departments did not.

here’s the link to the new policies:
http://www.dcjs.virginia.gov/cple/sampleDirectives/manual/2-39.docx
and the study, along with a couple of articles:
http://www.dcjs.virginia.gov/research/documents/12LawEnforceLineup.pdf
http://norfolkvabeach.com/police-photo-lineups-fail-new-state-policy.html
http://hamptonroads.com/2012/07/police-photo-lineups-fail-new-state-policy

h/t Valerie L’Herrou
Assistant Public Defender
Charlottesville Office of the Public Defender