Evidence Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

Right to Remain Silent

September 12, 2024 | The Law Office of Philip D. Cave

As a trial and appellate lawyer, I pay attention to word and phrase choices because of the potential effect on the reader or listener. You may be familiar with the saying, ‘it’s not what you say (write) but what the other person hears (reads).’ The point is that the listener may interpret what you have said differently and perhaps adversely. “The same phrase said in different ways can mean very different things. That is partly because perception is reality. So even if you say something that feels sincere to you, the person could hear it completely differently, and that becomes their reality.

James J. Duane, reminds us of the need to pay attention to word choice in his article, “The Right to Remain Silent: A New Answer to an Old Question.”

There is no official language that a witness is required to employ when invoking the privilege against self-incrimination. As one federal circuit court recently observed, “A witness’s answer could range from ‘I refuse to answer on the ground that my answer may tend to incriminate me’ to the more mundane ‘On the advice of counsel, I decline to answer.’” Evans v. City of Chicago, 513 F.3d 735, 740 n.4 (7th Cir. 2008).

Defining meaning from words in a statute

September 24, 2023 | The Law Office of Philip D. Cave

Generally

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

Challenge MRE 311!

July 18, 2023 | The Law Office of Philip D. Cave

YOUR MILITARY DEFENSE COUNSEL SHOULD CHALLENGE THE APPLICATION OF THE MILITARY RULE OF EVIDENCE 311.

THE RULE VIOLATES THE U.S. CONSTITUTION.

WE ARE CHALLENGING THAT AT THE U. S. SUPREME COURT NOW.

A proposal for a new enumerated Article 134(1)(2) offense

July 4, 2023 | The Law Office of Philip D. Cave

A proposal that a military defense lawyer might face in the future. LtCol Greg Curley, Exploitation. 230 Mil. L. Rev. 421 (2023). The author proposes the adoption of an enumerated offense under UCMJ Art. 134, which he suggests would criminalize “Precursor Behaviors to Sexual Assault.” As part of the offense, he also suggests what most of us would consider a service-connection requirement. He suggests,

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Rules of Evidence changes coming to a location near you

July 4, 2023 | The Law Office of Philip D. Cave

In May 2023, the Federal Rules Advisory Committees recommended changes were forwarded to Congress for “approval.” Included are two evidence rules changes that will likely become effective in courts-martial during 2025. The Military Rules of Evidence adopt the Federal Rules 18 months after they are effective. The new Federal rule is going to be effective 1 December 2023.

Two important changes will affect Mil. R. Evid. 106 (completeness) and 702 (expert testimony).

Daniel P. Elms, Rule of Evidence 702 Is Changing Faster Than You Think. ABA May 24, 2023, discusses the pending Rule 702 change. According to Elms, part of the rationale for change to 702 is,

Another bad day at CAAF for the Fourth Amendment.

May 7, 2023 | The Law Office of Philip D. Cave

Two recent decisions of CAAF condone unlawful or bad practices when OSI, CID, NCIS, and CGIS search cellphones; United States v. Shields and United States v. Lattin. As a result, the MCIOs are unlikely to change their unlawful or bad practices. More than sloppy police work gets two passes because the military appellate courts think suppression of evidence won’t change that behavior–and the accused is a bad person. Military defense lawyers need to be fully aware of the issues whenever evidence from an accused’s cellphone comes up in evidence.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

DNA–is touch or transfer DNA reliable evidence of guilt

May 9, 2022 | The Law Office of Philip D. Cave

My argument is no, and as military defense lawyers, this is our position at a court-martial trial held under the UCMJ.

In State v. Terrance Police, 2022 Conn. LEXIS 123 (May 10, 2022), the issue was whether “touch DNA” was good enough for probable cause to get an arrest warrant. Here is the important part of the decision saying it wasn’t.

[T]he DNA evidence used to describe the suspect was not a single source sample known to have come from the perpetrator. Rather, it was “touch DNA,” also known as “trace DNA,” from multiple sources that might or might not have come from the perpetrator—something the police simply had no way of knowing when they applied for the John Doe arrest warrant. Notably, the state has not identified a single case, and our research has failed to uncover one, in which mixed partial DNA profiles from touch DNA provided the description of a suspect in a John Doe arrest warrant. Touch DNA “is a term used to describe DNA that is left behind just by touching an object …. Notwithstanding its name, however, touch DNA does not necessarily indicate a person’s direct contact with the object. Rather, according to [experts], abandoned skin cells, which make up touch DNA, can be left behind through primary transfer, secondary transfer, or aerosolization.” (Internal quotation marks omitted.) State v. Dawson, 340 Conn. 136, 153, 263 A.3d 779 (2021). Even when a person touches an object, “DNA is not always detectable, meaning that it is possible to have someone touch an object but not leave behind detectable DNA because … some people leave more of their skin cells behind than others, i.e., some people are better ‘shedders’ of their DNA than others. There are also other factors that affect the amount of DNA left on an object, such as the length of contact, the roughness or smoothness of the surface, the type of contact, the existence or nonexistence of fluids, such as sweat, and degradation on the object.” Id., 154.

“Believe the victim”–encouraging a presumption of guilt?

September 25, 2021 | The Law Office of Philip D. Cave

For your reading. R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

Can you impeach the jury and their verdict

June 4, 2021 | The Law Office of Philip D. Cave

What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations?

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Communicated character

January 19, 2021 | The Law Office of Philip D. Cave

If you have defended an assault case based on self-defense, you know that the alleged victim’s character for violence can be relevant. What about on direct?

If your client knows of prior acts of violence then he may have a better argument that it was necessary to use, perhaps, more force than if the client knew the victim to be a peaceful person.

Mil. R. Evid. 405(a) allows the opinion of a victim’s character trait for violence. 405(b) would appear to support specific acts regarding that trait of violence.