Trial-Craft(c) Category Archives — Page 5 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

New Army Lawyer II

August 29, 2010 | The Law Office of Philip D. Cave

In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench. (I have noted over the years that it takes most judges about a year to get their relative bearing.) I think we can all echo his comments and find a myriad of examples from our own and other cases. What I wanted to comment on though was something in the section about keeping track. If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

MJ Summer Camp IV

July 11, 2010 | The Law Office of Philip D. Cave

Introducing evidence or refreshing recollection?

TC: May I approach the witness?

MJ: Yes.

MJ Summer Camp – III

July 10, 2010 | The Law Office of Philip D. Cave

A constant frustration – how to impeach (and typically with the book is sitting there on counsel table).

Complaining Witness: Blah, blah, blah.

Defense counsel: Now Ms. Complaining Witness you received an Article 15 . . . . (“Objection,” – “Sustained.” [DC looks at judge with a ‘what did I just do’ attitude.]).

MJ Summer Camp – II

July 7, 2010 | The Law Office of Philip D. Cave

Your client is charged with burglary, theft, and false official statement. You call a good Sailor witness. The witness testifies. Imagine the questions I asked in MJ Summer Camp I, or just as easily that there has been no prior impeachment cross-examination.

Trial counsel: LTC Witness, does a good Sailor commit burglary? No.

Trial counsel: LTC Witness, does a good Sailor commit theft? No.

MJ Summer Camp – I

July 5, 2010 | The Law Office of Philip D. Cave

A constant pet frustration – lack of understanding of how to impeach. Let’s look at this from a common witness situation – the good military character witness.

Witness: Blah, blah, blah.

Witness: In my opinion Private Rumpelstiltskin is a good Soldier.

I was encouraged, and then disappointed [amended]

July 3, 2010 | The Law Office of Philip D. Cave

Now, don’t get discouraged when your being encouraged doesn’t work out. Remember a primary court-room rule: never let them see they’ve hurt you. Not too long ago Judge Vowell was chief in the Army’s First Judicial Circuit. One of her rules of court was that both counsel must comply with Federal Rule of Civil Procedure 26(a)(2). Essentially she wanted a mini-brief on the experts. Here is what she said on the record in a prior case:

MJ: I’ll tell you that in following – I learned from the judges who work for me each day, and one of them has taught me that – take a look at Federal Rule of Civil Procedure 26, I believe, dealing with expert witnesses. Be prepared to file a notice as to what the witness’s qualifications are, and the basis for the testimony. Basically, this is a preemptive strike at the Daubert/Kumho Tire issues.

CDC: I’m happy to hear that, Judge, because you are the first judge who I’ve ever – in all the times I’ve said, ‘Let’s go to 26,’ I’m happy to comply.

Confirmation bias – again

July 3, 2010 | The Law Office of Philip D. Cave

Interview techniques

February 8, 2010 | The Law Office of Philip D. Cave

The Reid Technique is one of the more known and familiar interrogation and interview techniques used by law enforcement. We mostly become familiar with interrogation methods because of court-martial pretrial motions practice to suppress coerced or false confessions. The value of various police interrogation techniques is not limited to police interrogations. A trial counsel or a defense counsel preparing for a court-martial can benefit from knowing, understanding, and practicing some of the law enforcement interview and interrogation techniques. (NOTE, it is unethical for an attorney to lie during a witness interview, be careful, that is one technique that is not permitted. And it is unethical for a counsel to fail to identify themselves as a prosecutor or defense counsel when interviewing witnesses.)

Before I begin an interview, especially with a complaining witness in sexual assault case, I want to know about that person. At the first contact, and from then on, I constantly assess the person: their emotions, their physical and emotional responses, their word choice, their mannerisms. I’m doing that because I want to establish rapport. (You should of course do the same to the client.) I’ve said this many times, but I’ve frequently been the one to educate the prosecution witnesses on the process and what’s going on and why. That has benefitted me and my client numerous times. The “victim” appreciates you for telling them what’s going on. I cannot remember how many times a “victim” tells me that no one will tell them what’s going on. Defense counsel — this is your moment to establish rapport.

If you establish rapport with a witness you will get more information, the witness will respond better to you, and the witness may be less antagonistic to the client. I had not realized that at least one author calls this “isopraxis.” I know it as mirroring.

Military suicides

January 16, 2010 | The Law Office of Philip D. Cave

Statistics are starting to be released about suicides, primarily within the Army, showing increases in the numbers. I think it’s reasonably safe to assume that attempts as well as “gestures” have risen during that period of time.

Eight years of war in Afghanistan and Iraq have etched indelible scars on the psyches of many of the nation’s service members, and the U.S. military is losing a battle to stem an epidemic of suicides in its ranks.

Despite calls by top Pentagon officials for a sea change in attitudes about mental health, millions of dollars in new suicide-prevention programming and thousands of hours spent helping soldiers suffering from what often are euphemistically dubbed “invisible wounds,” the military is losing ground.

Happy New Year

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

Here is Randy Wilson’s letter to his children about being a trial lawyer. His thoughts are equally applicable to both sides in a court-martial.

Two of my children decided to go to law school. One just passed the bar exam, and the other is in the third year of law school. This is a letter I just wrote to them offering some of my views on the practice of law.

I’ve had members refer clients; a former TC as a client; and government witnesses refer clients.