Evidence Category Archives — Page 16 of 24 — Court-Martial Trial Practice Blog Published by International Military Lawyer

NMCCA instructional error case.

October 9, 2009 | The Law Office of Philip D. Cave

Since 1 October 2009, NMCCA has issued four new opinions. Here is United States v. Holmes, __ M.J. ___ NMCCA 200800501 (N-M Ct. Crim. App. 8 October 2009)( a Judge Meeks case of Wuterich fame). The other cases are sentence appropriateness and the usual administrativa.

The appellant’s sole assignment of error is that the military judge erred by failing to instruct the members that self-defense was a defense to negligent homicide. . .

We conclude the military judge erred to the material prejudice of appellant’s substantial rights. . .

DOD Authorization Act Conference Committee Report.

October 8, 2009 | The Law Office of Philip D. Cave

Thanks to CAAFLog, here is a link to the above report.

Here are the most pertinent sections affecting military justice trial practitioners.

SEC. 512. MEDICAL EXAMINATION REQUIRED BEFORE ADMINISTRATIVE SEPARATION OF MEMBERS DIAGNOSED WITH OR REASONABLY ASSERTING POST-TRAUMATIC STRESS DISORDER OR TRAUMATIC BRAIN INJURY.

New ACCA decision

October 6, 2009 | The Law Office of Philip D. Cave

United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).

On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

Supreme oral argument.

October 3, 2009 | The Law Office of Philip D. Cave

Monday will have the first oral argument of this term in a case relating to criminal law and procedure. Here’s the reminder from the LawProfBlog.

Monday, Oct. 5

Maryland v. Shatzer: limits on police questioning after a suspect asks for a lawyer

Attorney-client privilege

September 29, 2009 | The Law Office of Philip D. Cave

Here is a good post from FederalEvidence blog.

Inadvertent Disclosure Under FRE 502(b) Not Shown By Failure To Assert Privilege Promptly

Court denies motion to compel return of e-mail message after concluding the disclosure was not inadvertent under FRE 502(b) since defense counsel “had ample opportunity to discover and assert the claimed privileged status of the e-mail” and failed to do so, in Clarke v. J.P. Morgan Chase & Co., No. 08 Civ. 02400, slip op. (SDNY Apr. 10, 2009)

Jury selection to begin in Boyle court-martial

September 28, 2009 | The Law Office of Philip D. Cave

This is the headline of an article by John Ramsey in the Fayetteville Observer, 28 September 2009. There are plenty of other articles coming out because of the interest in the case.

An Army sergeant charged with involuntary manslaughter asked this morning for a jury made up of one-third enlisted soldiers.

Sgt. Justin A. Boyle is one of seven soldiers accused of accidentally killing Pfc. Luke Brown last summer after he ran wildly into the woods behind the Ugly Stick Saloon.

The prosecutor’s fallacy.

September 26, 2009 | The Law Office of Philip D. Cave

This is the name given to statistical errors that can arise when deciding the probability that a DNA sample is that of the accused. This is potentially more meaningful than usual to Troy Brown who was convicted of sexual assault and attempted murder. He has a twin brother.

This transposition of the conditional probability can produce results that range from the approximately correct to the grossly inaccurate. Without discussing the extent of the mathematical error, Mueller’s letter stated that this transposition was "so common it has been given a special name, the prosecutor’s fallacy."

Indeed, the fallacy abounds in the statements of judges, defense counsel, and journalists. Statistics textbooks, evidence casebooks and treatises, and judicial opinions all caution against it.

Senate Judiciary Committee Action Stalls On Reporter Shield Bill (S. 448)

September 24, 2009 | The Law Office of Philip D. Cave

Check out FederalEvidenceReview blog.

Pending Fed. R. Evid. amendment?

September 19, 2009 | The Law Office of Philip D. Cave

The proposed amendment to FRE 804(b)(3) will be transmitted to the Supreme Court for its review with a recommendation from the U.S. Judicial Conference that the Supreme Court approve and transmit the proposed amendment to Congress.

Under Mil. R. Evid. 1102, if approved the change will become effective in courts-martials 18 months later (unless the ~~DoD~~ President says otherwise).

/tip federalevidence.com

Shoplifting.

September 17, 2009 | The Law Office of Philip D. Cave

Did Iraq veteran’s PTSD spark his shoplifitng charge? By Julia O’Malley | Anchorage Daily News.

Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange? Can you explain that?

For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002