Trial-Craft(c) Category Archives — Page 8 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Exclusion of video-tape deposition under Crawford.

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

This case could be very helpful to an accused overseas where the prosecution lets witnesses go PCS or off active duty prior to trial, with the idea that the deposition or Article 32, UCMJ, hearing testimony could be used. Note, this case doesn't talk about MLAT's.

The government’s minimal efforts to contact an “unavailable” witness in Mexico on the eve of trial were not reasonable nor in good faith; the playing of the witness’s video deposition at trial violated the Confrontation Clause; because the error was not harmless beyond a reasonable doubt, the conviction was reversed, in United States v. Tirado-Tirado, _ F.3d _ (5th Cir. March 19, 2009) (No. 07-50670).

While it didn't work in this case, the appellant also sought to argue that, "he was denied a full and fair opportunity to cross examine Garay-Ramirez during the video deposition about new information . . ." This must be a consideration, especially if the depositions or Article 32, UCMJ, hearing have been months before trial, you have had the usual failure of the prosecution to comply with the Production requirements of R.C.M. 405(f)(9)(10)(11)(12) [n.1] at the Article 32, and you have a lot more information and discovery.

IAC

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

Here is the most recent Supreme Court case on IAC claims and evaluation of them. Knowles v. Mirazanyance, ___ U.S. ___ (March 24, 2009).

In this case the appellant sought to convince the courts that his counsel's failure to advance a defense was ineffective. The issue revolves around the existence or potential existence of a requirement to advance every available defense or theory regardless of counsel's evaluation of the benefit or value of doing so. To some extent the issue relates to the client who says "do this" and the counsel who says "no that won't work," or something similar. Or to put it another way, when should appellate courts substitute the judgment of the client over that of the counsel when there are decisions to be made on how to proceed at trial.

This Court has never established anything akin to the Court of Appeals’ “nothing to lose” standard for evaluating Strickland claims. Indeed, Mirzayance himself acknowledges that a “nothingto lose” rule is “unrecognized by this Court.”

Post-trial R.C.M. 917 motions

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

A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).

Rule 29. Motion for a Judgment of Acquittal

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.

New CAAF grants

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

Here are a couple of CAAF grants of immediate interest to trial practitioners.

No. 08-0808/AR. U.S. v. Derand M. DAVIS. CCA 20070808 (couldn't see this on the Army public website). Review granted on the following issue:

WHETHER TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE WHEN HE, WITHOUT CONSULTING WITH APPELLANT, SUBMITTED MATTERS TO THE CONVENING AUTHORITY BUT FAILED TO SUBMIT APPELLANT'S PERSONAL STATEMENT.

Cross-examination

March 27, 2009 | The Law Office of Philip D. Cave

Persuasive Cross-Examination:
Juries don’t like it when you cross over from tough to just plain nasty,

ABA Journal – Law News Now, http://www.abajournal.com/magazine/persuasive_cross-examination/ (last visited Mar. 27, 2009).

Sequestration of witnesses.

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

There are several times in a trial when I might ask the judge for a no contact order, to sequester witnesses, or to prohibit witness contact during a break or recess in the trial.

I have a fairly standard format for rape and child abuse cases. These in my experience are the cases where the opportunity for witness contamination is at its apogee. Oftentimes you are arriving on the scene too late as the defense counsel because most of the damage has already been done. However, you should still be attempting to minimize damage. For the moment though I wanted to focus on what happens in trial when there is a break in the trial and a witness is still on the witness stand either for their direct, their cross-examination, their redirect, or might be back for rebuttal. And this point works both ways — for defense and for government.

My personal belief is that once someone has begun their testimony no-one should talk to them and they should be told by the judge not to talk with anyone, including talking with the lawyer who called them. I always ask that of the judge when a prosecution witness is involved, and I always tell that to my own witnesses if it happens to us. There are too many ways subtle and not so subtle that a person can respond to the "how am I doing question," for example.

MJ Recusal

February 14, 2009 | The Law Office of Philip D. Cave

United States v. David, ACM S31478 (A.F. Ct. Crim. App. 10 February 2009), is of interest on the question(s) of when a military judge should recuse him or herself from a case. Here the military judge disclosed, in a naked urinalysis-cocaine case, close family member was a drug addict.

The issue was raised as a Grosty. While not a law review discussion of MJ recusal issues, it's worth reading for the reminder on the basics. Perhaps the trial defense counsel thought the MJ might be more sympathetic in some way so did not make a challenge, that could be a reasonable strategy.

BAH Fraud and mistake

February 14, 2009 | The Law Office of Philip D. Cave

If you are like me you are doing a lot of BAH fraud cases right now, especially for recalled or activated Guard and Reserve personnel. The AFCCA has issued an opinion about mistake and instructions in the fraud type case.

United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App. 10 February 2009).

In Armstrong the MJ gave a mistake of fact instruction on two offenses (and appellant was acquitted on those two offenses), but declined the instruction on a third allegation. The AFCCA found harmful error and reversed.

Article 32’s and depositions.

February 8, 2009 | The Law Office of Philip D. Cave

Criminal lawyers can't learn from civil practice lawyers and vice-versa?

Let's think of an Article 32, UCMJ, hearing as a deposition. In most cases it has the effect of a deposition in terms of fodder for cross-examination, direct, or preparation at trial (except for Air Force cases). [1] Also, in certain circumstances the Article 32, UCMJ, transcript takes the place of a deposition when a witness is not available for trial (except for Air Force cases). See United States v. Cabrera-Frattini, 65 M.J. 241 (C.A.A.F. 2007) , but see United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005). So, we can perhaps learn from how civil practice lawyers go about doing depositions?

Evan Schaeffer has The Trial Practice Tips Weblog.

The School Solution

February 8, 2009 | The Law Office of Philip D. Cave

The Reporter, Vol. 35, No. 3 (Fall 2008) has a couple of articles worth reading.

Major Jefferson McBride, CONFRONTATION CLAUSE: The Way Ahead with Remote Testimony, p. 20.

Major Thomas Dukes, EXPECTATION OF PRIVACY? A Brief History, Including [United States v.] Long, [United States v. ] Larson, and DOD’s New Computer Use Policy, p.22.