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

Worth the Read (WTR)–right to silence

June 4, 2020 | The Law Office of Philip D. Cave

Akorede Omotayo, The Right to Silence–or the Presumption of Guilt.

This is an interesting discussion from another country on something we are familiar with.

It will be recalled that the right to silence formerly comprises the privilege against self-incrimination and the right not to have adverse inferences drawn from his silence. Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right to silent, save when the accused and the victim were on even terms. However, theprovisions in the CJPOA, particularly ss 34-35 have sought to alter this principle to the extent that the question that this essay grapples with, is whether the right to silence,despite the changes, is still useful in protecting an accused’s supposed ‘constitutionalright’ of innocence, until proven guilty.

Pretrial agreement terms

February 4, 2018 | The Law Office of Philip D. Cave

In general a court-martial accused can waive most rights and privileges in a pretrial agreement. A common term where there are multiple accuseds (drug or sexual assault cases for example) is an agreement to testify truthfully in another court-martial. But,

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

How broad is the evidentiary privilege in MRE 513

July 12, 2016 | The Law Office of Philip D. Cave

Very broad.

Or, that’s how I interpret a 2-1 Order in H.V v. Kitchen and Randolph (RPI), MISC D. No. 001-06 (C.G. Ct. Crim. App. 8 July 2016).

At trial, the defense sought mental health records of the complaining witness. After litigation on the issue, the military judge ruled