Trial-Craft(c) Category Archives — Page 7 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Expungement

August 1, 2009 | The Law Office of Philip D. Cave

Civilian attorneys get quite a few questions about expunging court-martial convictions.

The answer is no, it can’t be done in the same way that many states allow for an expungement. The closest way to have it removed from your record is to have a court-martial reversed for factual sufficiency at the CCA, or get a presidential pardon.

I don’t think it’s IAC not to tell the client about the lack of an expungement procedure. There are a myriad of collateral consequences so it seems to me that you should add this little item to your checklist of advice to the client.

McElhaney on Litigation

July 23, 2009 | The Law Office of Philip D. Cave

When the Judge Is the Jury: Your goals don’t change in a bench trial, but your techniques should, August 2009 issue of the ABA Journal.

SODDI

July 22, 2009 | The Law Office of Philip D. Cave

Does the SODDI defense work?

Here are some thoughts or considerations.

Elizabeth R. Tenney, Hayley M.D. Cleary, Barbara A. Spellman, "This Other Dude Did It!" A Test of the Alternative Explanation Defense, 21 The Jury Expert July 2009.

Why we don’t do joint trials.

July 22, 2009 | The Law Office of Philip D. Cave

Confession(s) To Make: Florida Court Orders Separate Trials Of Former Football Players Based Upon Bruton Issues

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant’s out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. This so-called "Bruton doctrine" explains why former high school football players in Bradenton, Florida were informed on Friday that they will have separate murder trials.

I remember in 1980 appearing with 11 other defense counsels and eight accused for a joint Article 32, UCMJ, hearing. Ultimately each of the cases was dealt with individually through dismissal of charges, PTA’s, trials.

I’m sure there have been some other joint Article 32, UCMJ, hearings. But, I think correctly, you aren’t going to see many if any joint trials. The piece by Professor Colin Miller indicates one of the problems often found in joint trials.

McElhaney on Litigation

July 16, 2009 | The Law Office of Philip D. Cave

Jim McElhaney, The Arsenal of Persuasion: Make your closing argument a really good story, ABA Journal, July 2009 Issue.

I’m not an expert.

June 4, 2009 | The Law Office of Philip D. Cave

I’m not an expert I’m here as a teacher to help you understand some of the evidence and facts.

Richard Gabriel, Redefining Credibility: Turning Expert Witnesses into Teachers, 21(3) The Jury Expert, May 2009.

Frequently, however, [jury’s] are turned off by expert witnesses, who may resemble one of the following:

Disturbing trend?

June 1, 2009 | The Law Office of Philip D. Cave

NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009).

CAAFLog, 28 May 2009.

AFCCA today issued a fascinating published opinion, which I’ve posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel.
Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.

CAAF decision

May 19, 2009 | The Law Office of Philip D. Cave

CAAF has decided United States v. Collier, __ M.J. ___ (C.A.A.F. 2009).

This case presents the question whether the military judge erred in granting the government’s motion in limine prohibiting Appellant’s defense counsel from cross-examining HM2 C, the main Government witness, about an alleged homosexual romantic relationship between her and Appellant and from introducing any evidence of such a relationship.1 While the military judge did permit cross-examination about a close friendship, the defense that Appellant wanted to present was that HM2 C framed Appellant for larceny as a result of their romantic relationship ending badly. Because of this ruling, Appellant was free only to assert the motivation of an angry friend rather than a disappointed lover; as the Government then argued in its closing, the motivation of an angry, vengeful friend “strains all logic; it’s just not credible.”

The military judge’s ruling prevented Appellant’s counsel from fully exploring HM2 C’s bias and motive to misrepresent the truth, and precluded Appellant from presenting her theory of the case. Under the facts of this case, this was a violation of Appellant’s Sixth Amendment right to confront a witness against her.

Irrelevant inadmissible testimony

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

I frequently find myself objecting to or submitting in-limine motions about law enforcement testimony on how they got involved in the investigation. That testimony usually has a lengthy recitation that includes inadmissible hearsay from people, alleged victims, alleged co-accuseds, other law enforcement personnel. You have multiple hearsay, 401, and 403 objections.

Here’s how the state of Maryland recently dealt with this issue and it’s instructive.

Parker v. State.

Alcohol in sexual assault cases

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

I take some back, almost.

Again I was looking at the NKO Criminal Law Division’s practice tips and I came across this one dealing with the ““Blackout” defense to alcohol facilitated sexual assault.” No, it’s not. This title implies that the accused has deliberately gotten the complaining witness drunk. This is not the case in 99% of the cases and don’t let the prosecutor characterize it this way. There are several items or thoughts generated from this pointer helpful to the defense. This pointer could be useful to the defense in justifying experts. But let’s comment on the article from a defense perspective – I’ll do this stream-of-consciousness. No secrets here, it’s in plenty of records of trial.

1. The article tells the prosecution to hold the defense feet to the fire on qualified experts. Ha! Doesn’t the prosecution usually deny the expert and then offer one under the “adequate substitute” theory? I would be very interested in the number of times an expert request is made and not approved. Which leads to a next point about this. Now, remember this. When the prosecution denies the request and proffers a substitute, even if it turns out the substitute isn’t really qualified, what has the prosecution done? Conceded necessity. Once that happens it’s all over, the only issue is who and is that person available according to the timetable. Ooops, just gave a hint to the prosecution, but that’s OK.