Trial-Craft(c) Category Archives — Page 6 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

It’s not what you think I said, it’s what I said

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

Whenever I talk about court-room lawyering I always emphasize that the person must first be themself and not try to become someone they aren’t. Once you decide who you are, your “style,” and how you will present, then you can take the other tools of advocacy and adapt them to your personality and form of presentation. Sure, you can be taught and learn about distracting mannerisms – the clicking pen, the walking back and forth, or about filler words, but you can’t change the essence of who you are when making a court-room presentation. My theory is to embrace your own self and then adapt the tools. So it was with interest I saw this item in the November issue of The Jury Expert.

Katherine James, Everything I Ever Needed To Know About Live Communication I Learned From Konstantin Stanislavski: Common Mistakes and Best Practices, 21(6) The Jury Expert, Nov. 2009.

The military has gone through its phase of employing actor/consultants to teach trial advocacy. I’m not completely a fan of the method, but I can see there are valuable teaching points. Here are some.

The Rule of Lenity

December 5, 2009 | The Law Office of Philip D. Cave

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”

From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as an argument regarding application of an R.C.M. or Mil. R. Evid., an argument by analogy I suppose. Another way to express this would be that where there is an ambiguity the ambiguity should be construed against the writer. Perhaps there is some hope?

In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application…

Social sites and court-martials

November 13, 2009 | The Law Office of Philip D. Cave

I have mentioned several times that I always look for MySpace, Facebook, and other social network accounts held by witnesses at a court-martial trial I have. In a number of instances I have found information, photographs, or leads to other information that has been useful for cross-examination at the court-martial. Google and other social network sites can be a useful investigative tool for military lawyers. See CNN Justice: Facebook status update provides alibi; The Local, His Facebook Status Now? ‘Charges Dropped;” Professor Colin Miller has more on his Blog.

Here is a case from New York City in which the accused’s Facebook activity proved his alibi. This case also, again, points out the fallacy of identifications. The accused was a suspect in a robbery and was picked out of a line-up.

Rodney Branford claimed alibi. He claimed and had his family testify that he was elsewhere on his father’s computer updating his Facebook account at the time of the robbery. The prosecutors didn’t think that was sufficient proof of alibi and were still going toward trial. Heck who believes and accused and his family. At least the prosecutor was willing to work with the defense and subpoened records from Facebook. The records showed that indeed he was updating his Facebook account from his father’s computer (IP address).

Motions practice

November 7, 2009 | The Law Office of Philip D. Cave

Here are four very good tips from Evan Schaeffer of The Trial Practice Tips Weblog:

“When the Judge Agrees With You, Stop Talking.”

“Look at the Judge, Not Your Opposing Counsel”

Prosecution witness psych records?

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

Here’s a case discussing access to mental health records of a primary prosecution witness.

This was a due process and confrontation case. Here, as is not an infrequent issue, the prosecution succeeded in having damaging information about their witness excluded. The prosecution then went on to give an “incomplete and inaccurate picture” of their witness. The prosecution did this knowing full well that they were presenting a misleading picture. (Why that’s not prosecutorial misconduct I have no idea. [N.1])

The majority held that the Confrontation Clause was violated by the restrictions on cross-examination about the informant’s mental health and use of prescription medication. The jury was deprived of evidence concerning his ability to perceive and recall what transpired and the informant’s credibility. On this point, the majority noted:

Members (Jury) leaders.

October 11, 2009 | The Law Office of Philip D. Cave

Barbara Rich Bushell, Identifying Leaders, 21(5) The Jury Expert, Sept. 2009.

When I initially read this piece I did not see any relevance to a military Members panel (the jury). The military “foreperson” is preselected, and will be automatically selected after challenges – it’s the senior Member by rank and date of rank. However, after a few more readings there do seem to be some potential ideas from the piece. So lets moot a little.

1. The senior member is not a leader in the traditional military sense and will defer to others in certain situations – maybe she’s the medical type. You need to know who the alternate leader is, the one who is likely to take over in the deliberation room. And having been there done that with a (non prior enlisted) O-3 senior member and a sergeant major on the panel, well . . . . . you get the picture.

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. . .

More on SAUSA

August 21, 2009 | The Law Office of Philip D. Cave

SAUSA an interesting piece from Volokh which I posted the other day.

It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, United States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004), United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir. 2002), but the prosecutors here did just that. One prosecutor asked: “You’re saying that [they’re] going on the stand, swearing an oath to testify to the truth and then lying . . . ?” He even pitted his own credibility against Harrison’s, asking, “So I’m in the conspiracy against you, is that right?” These were not isolated incidents: Improper questioning was an organizational theme
for the prosecutor’s entire cross-examination.

The vouching was similarly patent. The government was entitled to rebut Harrison’s suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted “with no adverse action whatsoever” after an internal military investigation. This clearly “suggest[ed] that information not presented to the jury,” but available to the investigators, supported the officers’ testimony. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). And it would be hard to find a clearer case of “placing the prestige of the government behind a witness,” id., than the prosecutor’s statement that the “[g]overnment stands behind” Officers Jenkins and Kirby.

The government in its argument then:

Provident plea?

August 7, 2009 | The Law Office of Philip D. Cave

(1) An accused may not enter inaccurate, inconsistent, improvident, or uninformed pleas of guilty, and the military judge may not permit the accused to do so. UCMJ art. 45, 10 U.S.C. § 845 (1988); see United States v. Schwabauer, 37 M.J. 338 (C.M.A. 1993).

(2) Therefore, before the military judge may accept the accused’s pleas of guilty, the military judge must personally inquire of the accused as to the factual basis for the plea. R.C.M. 910(c), (e); Care, 40 C.M.R. at 253; see also United States v. Craney, 23 C.M.A. 519, 50 C.M.R. 658 (1975); United States v. Daniels, 39 M.J. 789 (N.M.C.M.R. 1993).

(3) The facts revealed by the accused must objectively support the plea. Schwabauer, 37 M.J. at 341 (citing United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980)).

Adverse inferences

August 5, 2009 | The Law Office of Philip D. Cave

From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided for a reason within the control of the adverse “party,” then it can be argued or presumed that the information would have been favorable to the accused. Here is a nice little piece – from a civil case – that is of interest.

District Court concludes duty to preserve electronic and other evidence commenced on pre-complaint telephone call, warranting adverse-inference instruction sanction, in KCH Services, Inc. v. Vanaire, Inc., et al., _ F.Supp.2d _ (W.D. Ky July 22, 2009) (Civil Action No. 05-777-C).

It seems to me that CID/NCIS/OSI/CGIS have a duty to preserve evidence, along with gathering it. To the extent you may be able to find problems with evidence gathering, handling, witness notes or statements, etc., there may be a way to fit the adverse inference into a botched investigation argument. Just a thought.

/tip Federal Evidence blog.