Articles Posted in Uncategorized

Captain Milott has an interesting article about the use and interpretation of emojis and emoticons in criminal trials when they are part of a text, email, or some other social media message.  Many sexual assault courts-martial involve texts and emails between the complaining witness and a suspect–is there a damaging admission, a confession, or something helpful in defense?

Check out 44(3) The Reporter 61 (2017).

Expressing emotion in our digital lives presents unique challenges. Articulating joy, sadness, or laughter in non-verbal, non-word characters is a learned skill which can be interpreted differently than the author intended. Despite the danger of misinterpretation inherent in the use of emojis and emoticons, their popularity has increased since their online debut in the early 1980s.

Lagano, et al, The Air Force SVC Program: The First Five Years, 44(3) The Reporter 31 (2017).

We begin by examining the creation of the SVC program within the Air Force, the expansion of victims’ counsel programs throughout the Department of Defense (DoD), and the growing list of victims’ rights.  In the second part of this article, we examine the current state of the law and regulations governing the SVC program, highlighting the role of the SVC, and the responsibilities and obligations of the base legal office and others who interact with victims and SVCs. Additionally, we examine the most recent development in the area of SVC representation–Air Force Guidance Memorandum (AFGM) 2016-01 to AFI 51-504.

The AFGM states the general scope.

The number of exonerations involving wrongdoing by police, prosecutors and other government workers set a record last year, according to a report released on Wednesday. The findings are part of a larger trend that reflects America’s more aggressive attempts to expose and understand the causes of wrongful convictions.

The new statistics, released by the National Registry of Exonerations, documented 84 cases ─ half of them homicides ─ in which people were freed from prison in 2017 after their convictions were revealed to be tainted by official misconduct, as opposed to mistaken identifications, false confessions and false accusations.

https://www.nbcnews.com/news/us-news/more-exonerations-are-driven-police-prosecutor-misconduct-n856626

Here’s an interesting timeline I came across when reading about the different reasons people lie about sexual assault.

International Timeline

In general, motive can be described as an inward emotion, passion, or feeling in a person which “is likely to lead” that person to do an “appropriate act” as “an outlet” for this emotion. See J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 117 (3d ed. 1940) (hereafter cited as Wigmore). The defense particularly contended that the prosecutrix had a feeling of anger towards appellant and a feeling of guilt concerning herself. She argued that it was reasonable to infer that an angry person would do some act of revenge against the person who was the object of her anger. She further intimated that a person experiencing guilt would do some act of revenge against the person who caused this feeling of guilt to surface. The particular acts to be inferred from this emotional state of mind in the prosecutrix were her false accusations that appellant raped her. No argument has been presented by the Government which would lead us to conclude that such acts of revenge could not be reasonably considered appropriate outlets for these emotions. Id.

United States v. Dorsey, 16 M.J. 1, 4 (C.M.A. 1983).

If you have been falsely accused of a sexual offense you are not alone.  I agree and understand that does not make your time in the hot seat happy, comfortable, or certain the truth will out.

Here is an article about sexual offense investigation and prosecution in the U.K.  U.S. service members will see similarities–sadly.

“Guilty until proven nnocent: life after a false rape allegation.” Jonathan Wells, The Telegraph (UK), some takes and inferences.

Some may remember United States v. Denedo, where the appellant won at the Supreme Court, but then his appellate lawyer failed to file a petition to CAAF in time–out of court, done, no relief.

So here’s an interesting Coast Guard case–United States v. Reese III.

Reese filed a petition for a writ of coram nobis.

Why Facts Don’t Change Our Minds

This is an interesting read on what I usually refer to as confirmation bias.

Go to Army publications

After a lengthy absence from the general public, the following are now, again, available to the public.  (ACCA decisions are still not available.

Army Lawyer.

A year ago an O-4 client was accused of various physical assaults on his son over an eight-year period.  He faced two charges with a total of 10 specifications.  Prior to trial we were able to identify very helpful information about the credibility of the allegations, despite there being medical evidence and prosecution expert testimony.  Prior to trial, one charge was dismissed and we proceeded to a jury trial on one charge and eight specifications.  The judge made a ruling close to the end of the prosecution case and the case was delayed several months while to prosecution appealed the judge’s ruling.  After the appeals court denied the prosecution appeal we continued the trial.  At the end of the prosecution case, the judge entered a finding of not guilty on three of the eight specifications.  At issue overall was whether the alleged acts happened, or if there were some minor acts that were exaggerated and the doctrine of parental discipline.

(A motion for a finding of not guilty is usually very easy for the prosecution to overcome because all they have to show is that there is some evidence upon which a rational jury can decide–a very low standard; and the judge isn’t allowed to make credibility evaluations.)

After all the evidence was submitted, instructions were given, and arguments were made–the members deliberated for about 3.5 hours.  They returned a finding of guilt as to one of the remaining five specifications.  After a sentencing hearing, the jury announced a sentence of “No Punishment.”  In the military, this is an approved “sentence” and effectively means that the consequences of a conviction alone are likely considered sufficient to hold the person accountable and promote rehabilitation.