UCMJ Tag Archives — Page 3 of 51 — Court-Martial Trial Practice Blog

b‘ware

July 20, 2012 | The Law Office of Philip D. Cave

The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

A greater “privilege” reminder

July 1, 2012 | The Law Office of Philip D. Cave

From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said:

The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without "full-scale" trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971). An excessively formalistic or technical approach to this rule may undermine these policy concerns in the long run. United States v. Herman, 544 F.2d [791,] at 797 [(5th Cir. Fla. 1977)].See generally Wright and Graham, Federal Practice and Procedure: Evidence § 5345 (1980). A failure to recognize and enforce the military expansion of this rule may have the same effect. 23 M.J. at 76.

United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(Sullivan, J., concurring).

I think it fair to consider Mil. R. Evid. 410 a form of privilege although not found in the 500 series of rules. Fourthamendment.com notes an interesting case about application of Fed. R. Evid. 410. In reading the case it appears the federal courts may take a more restrictive view of the rule compared to application of Mil. R. Evid. 410.

Evidence issues for 2012

January 4, 2012 | The Law Office of Philip D. Cave

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions

Confrontation Clause: More Notice and Demand Rules?

Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations

Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause

Circuit Split: Admission Of Pre-Miranda Silence

Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?

More Judicial Criticism of the “Inextricable Intertwinement" Theory

Rule Amendments: “Restyling” Federal Rules of Evidence

Pending Rule Amendment: FRE 803(10) – Absence of Public Record

Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

On item 8., which will depend on how the President “adopts” the restyling. Interesting that there may be issues surrounding implementation of the restyled rules.

The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.

Post-trial duties

January 9, 2011 | The Law Office of Philip D. Cave

NMCCA has decided United States v. Owens.

The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

Motivation

January 8, 2011 | The Law Office of Philip D. Cave

To stay out of trouble.

To work hard for you clients.

Labor Department employment statistics released Friday show that young veterans continue to have serious and growing problems finding work in a tight job market, while older veterans are doing better than the general population.

Current UCMJ after NDAA FY 2011

January 8, 2011 | The Law Office of Philip D. Cave

The newly revised UCMJ is here. Thanks to CAAFLog.

I object!

December 25, 2010 | The Law Office of Philip D. Cave

Waive it or raise it at work – and at a court-martial under the UCMJ.

Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

Jackie Robinson–not guilty

November 28, 2010 | The Law Office of Philip D. Cave

Takepart notes:

Of course, Robinson didn’t begin his fight for equal rights overnight. While enlisted, Robinson was court-martialed for refusing to sit at the back of the bus — eleven years before Rosa Parks. Faced with multiple offenses, including public drunkenness (even though Robinson did not drink), the UCLA standout was acquitted of all charges by an all-white jury.

American Heritage Magazine has this introduction to the charges (and a fairly decent history of the case):

More delays in Wuterich?

November 9, 2010 | The Law Office of Philip D. Cave

Misc. No. 11-8009/MC. Frank D. WUTERICH, Appellant v. David L. Jones, Lieutenant Colonel, United States Marine Corps, in his capacity as Military Judge, and United States, Appellees. CCA 200800183. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

False confessions in the spotlight

November 7, 2010 | The Law Office of Philip D. Cave

Thanks to Sentencing Law & Policy:

PBS Frontline has been giving lots of attention to criminal justice systems this fall. . . . This week Frontline will broadcast a new documentary "The Confessions," which examines the case of the "Norfolk Four" involving a quartet of Navy men who were wrongfully convicted after being coerced into giving false confessions.

A preview is at this link.