Court-Martial Trial Practice BlogYOUR 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.
Articles Posted in Trial-Craft(c)
Double Jeopardy
A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to convict you.
In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)
The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.
Motive to lie
We know that some people lie about being sexually assaulted.
We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.
We know that some women are like men, they cheat on their spouse.
I object, so let’s discuss that with the members
Ooops.
When you object to something you are asking that the members not hear a piece of testimony or see a piece of evidence–right? Right?
So why then do you let the Trial Counsel (or defense counsel) discuss that with the military judge in front of the members? I see this on a regular basis as I read records of trial–I’m reading one now where there was three pages worth of discussion in front of the members. Yes it’s a hassle to excuse the members and the witness while you have a discussion about admissibility.
Don Rehkopf as a reminder to defense counsel
Here is something from good friend Don Rehkopf as a reminder to defense counsel.
1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD;
DC–you have to police the prosecutors, they won’t police themselves.
Once again it is the duty of the defense counsel to police the prosecutors not for the prosecutors to police themselves. That is one of the conclusions from the new decision—United States v. Voorhees,
https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf,
just decided by the U. S. Court of Appeals for the Armed Forces.
You are presumed guilty
Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty.
Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.
Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods
Don’t do speaking objections in front of members
When a party objects to testimony or documents they should state “I object” and cite the evidence rule or principle and nothing else. You may be tempted, but don’t make a speaking objection.
United States v. Gurfein, NMCCA 2019, is an example of why speaking objections are improper and can cause problems. I have had trial cases where I’ve had to cut trial counsel off from making a speaking objection in front of members. I have appellate cases where the counsel and military judge engaged in a discussion of the objection (sometimes lengthy and detailed) in front of the members–this is improper.
Defense counsel–shut trial counsel down when they make speaking objections in front of members. I know judges want to save time and not inconvenience members, but you have a client who may be adversely affected by what they hear.
Put a little English in it
I have had cases of the reluctant witness, typically the spouse physical abuse cases, to United States v. English (ACCA 2018) was not a surprise in terms of the issue. The alleged victim was refusing to cooperate in the prosecution so the prosecution tried to introduce prior statements. The prosecution uses Mil. R. Evid. 803(5), the rule about prior recollection recorded. In English the prosecution and the judge erred. The prosecution needed to check three foundational boxes–but they didn’t according to the ACCA.
(1) the recorded statement contains matters of which a witness once had knowledge but now has insufficient recollection to enable the
witness to testify fully and accurately;
Discovery about MCIOs involved in your case
I, currently, ask for the following as a minimal initial discovery request.
Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue. In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.
We can expand the initial request as more information comes to light. I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).