Trial-Craft(c) Category Archives — Page 2 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Non DNA evidence in sexual assault cases

June 10, 2018 | The Law Office of Philip D. Cave

Once the MCIO gets a “confession” or DNA in a sexual assault case, it seems, they stop investigating–bad.

Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.

Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk. OK, where are the bar receipts? No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available. Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts. The receipt tells you a number of things: time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?) Or, how about the video from the base entry point when the CW walks or drives or is driven on base? Is it possible the video helps show how unintoxicated the CW was or wasn’t? CCTV? Remember, the MCIO doesn’t usually care about this stuff.

Victim impact input prior to sentencing

December 25, 2017 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals (AFCCA) has issued an interesting en banc (5-3) opinion in United States v. Hamilton, 76 M.J. ___ (A. F. Ct. Crim. App. 2017), about victim impact evidence or statements.

The accused pleaded guilty to the possession and distribution of child pornography. On sentencing, as we often see in these cases, the prosecution introduced unsworn statements of the victims, all of which predated the accused’s date of offenses. For those who haven’t been exposed to these statements, generally, they review the abuse that occurred at the time the video or image was taken and the subsequent life and health effects on the victim. We know that courts allow such information because of the idea that a victim is re-victimized each time a person views or distributes the images–it’s essentially an ongoing crime. Slip op. at 7-8.

I think there are several takeaways for practitioners.

The Terlap sentencing issue

October 9, 2017 | The Law Office of Philip D. Cave

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence. The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

Government appeals

September 15, 2017 | The Law Office of Philip D. Cave

Under Article 62, UCMJ, the prosecution can appeal a military judge’s trial ruling under six circumstances. The two most common are:

(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

For example, a military judge dismisses a specification because the specification fails to state an offense. That is what happened in United States v. Schloff. The government appealed, the ACCA decided the appeal in favor of the government, CAAF agreed with the ACCA, and the Supreme Court declined to issue a writ of certiorari. (We are now in the traditional Article 66, UCMJ, appeal before ACCA on the sole specification for which there was a conviction.)

Pending change to federal rules of evidence

August 12, 2017 | The Law Office of Philip D. Cave

As you know, Military Rule of Evidence 1102 provides that,

Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

So, here is some relevant activity regarding possible changes to the federal rules of evidence.

A prosecutor’s duty

April 29, 2017 | The Law Office of Philip D. Cave

A prosecutor’s understanding of their duty.

In exercising their awesome power a prosecutor should “Remember what it means to get it wrong. A criminal goes free. An innocent person is wrongfully punished. The community is less safe. The system has failed in its mission.”

So says a former prosecutor with experience as a defense counsel.

Backgrounders

March 13, 2017 | The Law Office of Philip D. Cave

As part of due diligence defense counsel want to know as much about a witness as possible–that’s OK and ethical. Many of us have found helpful information on social media accounts.

The gist of Formal Opinion 466 is that, within the context of Model Rule 3.5, a lawyer may review a juror’s or potential juror’s various postings on websites and social media. But the lawyer should not send jurors or prospective jurors a request for access, either directly or indirectly, to their social media accounts because doing so would amount to a violation of the prohi-bition in Model Rule 3.5(b) against ex parte communications with jurors that are not authorized by law or court order.

While the above applies to a court-martial member, it’s likely a best practice when researching witnesses in a case.

A court-martial is not a gymkana

February 12, 2017 | The Law Office of Philip D. Cave

We caution trial counsel…[as to] how difficult this area of the law can be. There are still issues to be resolved in this arena…. With precedents far from settled, only the bravest of advocacy acrobats ought to tempt fate. (They do so at their own peril, for we guarantee no safety net against reversal).

United States v. Weddle, 61 M.J. 506, 510 (C.G. Ct. Crim. App. 2004), citing United States v. Edwards, 35 M.J. 351 (C.M.A. 1992).

A chilling thought for all Air Force sexual assault trials?

December 23, 2016 | The Law Office of Philip D. Cave

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

Appellate (and trial) advocacy

October 29, 2016 | The Law Office of Philip D. Cave

John Wesley Hall’s website is an excellent resource for issues involving the Fourth Amendment–FourthAmendment.com. In pointing to a search warrant case Mr. Hall quotes from the opinion.

We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise narrative of the facts stated in accordance with the standard of review appropriate to the judgment and should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind. Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility of the confidential informant” mentioned in the affidavit and has “either played word games with this court or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied (2000).

McCollum v. State, 2016 Ind. App. LEXIS 370 (Sept. 30, 2016).