Articles Posted in Up Periscope

In  United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001), the CAAF has held that the Sixth Amendment confrontation right does not apply at sentencing, but that the Fifth Amendment does.

Here is an interesting case from the Supreme Court of Arkansas, Vankirk v. State, which applies the confrontation right to a jury (members) case.  Here are Prof. Friedman’s thoughts:

I think this case is a good illustration of the issue of confrontation rights in sentencing. Suppose the girl had testified live at the sentencing proceeding, but at the conclusion of direct, as defense counsel was rising to cross-examine, the judge said, "You are excused. We have no need for cross-examination, so I will not allow it." I think that would plainly be unconstitutional – if not under the Confrontation Clause, because the Clause is construed not to apply to this type of proceeding, then under the Due Process Clause. So should the result be any different when the witness testifies just outside the courtroom on videotape and the tape is played at the proceeding? When I refer to the speaker as a witness and say that she is testifying, I am drawing on one of the essential points of Crawford: Simply because a person (such as Sylvia Crawford) speaks out of court does not mean that she is not testifying, and indeed the central focus of the Confrontation Clause is to require that testimony be given in court, under prescribed procedures[.]

Marine Corps Times reports:  A Marine squad leader [Hutchins] who was convicted of leading troops to kill an Iraqi civilian will get a temporary release from prison to witness the birth of his second child.

TheRepulic reports on United States v. Burke.  I know we often take issue with the quality of military law enforcement investigations.  But maybe they are better than expected in the civilian community.

Burke’s attorneys questioned Walker [a civilian detective], who said Friday that his evidence technicians failed to find six shell casings at Karen Comer’s home where the shootings occurred. The casings were later recovered by a cleaning crew.

Here is a link to pending non-military criminal law cases at the Supremes, which may have an impact in military cases.  Next set of potentially relevant oral arguments begin 31 October.  Here are links to subsequent ‘actions,’ in some of the cases.

Transcript of Maples v. Thomas, oral argument.  Whether a defendant is prohibited from arguing in federal court that his death sentence is unconstitutional because his lawyer missed a filing deadline in state court.  I’m reminded of Denedo v. United States. 

Transcript of Howes v. Fields, oral argument.  Suspects are entitled to Miranda warnings when questioned about a crime while they are in custody.

Davis & Leo on Determinations of Voluntariness for Admissibility of Confessions

Deborah Davis (University of Nevada, Reno) and Richard A. Leo (University of San Francisco – School of Law, pictured) have posted ‘Interrogation-Related Regulatory Decline:’ Ego-Depletion, Failures of Self-Regulation and the Decision to Confess (Univ. of San Francisco Law Research Paper No. 2011-24) on SSRN. Here is the abstract:

As reflected in rulings ranging from Trial Courts to the U.S. Supreme Court, our judiciary commonly views as “voluntary,” and admits into evidence, interrogation-induced confessions obtained under conditions entailing stressors sufficient to severely compromise or eliminate the rational decision making capacities and self-regulation abilities necessary to justify such a view. Such decisions reflect, and sometimes explicitly state, assumptions soundly contradicted by science regarding the capacity of normal suspects lacking mental defect to withstand such stressors as severe fatigue, sleep deprivation, emotional distress – and aversive interrogation length, tactics and circumstances – and nevertheless resist the powerful pressures of the interrogation to self-incriminate. Notwithstanding excessive length and other severe interrogation-related stressors and tactics demonstrably associated with elicitation of false confessions, judges overwhelmingly admit confessions into evidence and juries overwhelmingly convict. In this review, we introduce the concept of “interrogation-related regulatory decline” (IRRD) – or decline in the self-regulation abilities necessary to resist the forces of influence inherent to interrogation.

We review scientific evidence of the unexpected ease with which self-regulation abilities can be significantly compromised, with the hope that this evidence can (1) encourage more evidence-based objectivity, realism, clarity and specificity in the criteria for assessing voluntariness underlying admissibility decisions, (2) promote reforms aimed at prevention of interrogation practices entailing substantial risk of severe interrogation-related regulatory decline, and (3) encourage more scholarly research on acute sources of interrogative suggestibility.

Contrary to what appears to be a common belief among attorneys in criminal cases, the court does not live in the discovery file for each case. Indeed, prior to trial, the court has little or no access to the evidence in the case apart from what the parties may present in support of or resistance to a motion to suppress or a pretrial evidentiary motion. Thus, it is critical that the parties adequately identify–and where possible provide the court with–the evidence that is at issue in a pretrial evidentiary motion. This court has, with some regularity, denied or reserved for trial ruling on pretrial evidentiary motions where the parties did not identify the evidence at issue sufficiently for the court to make a pretrial determination of admissibility. Here, the prosecution has quoted in its Response what it believes to be the pertinent part of the first letter at issue that the prosecution argues demonstrates its admissibility. The court does not, however, have any independent ability to verify the contents of the letter in full. Even if the prosecution has adequately identified the evidence at issue, for this item of challenged evidence, as well as the factual context of this evidentiary dispute for the court to determine pretrial the admissibility of this letter, the court has not necessarily been able to do so for all of the challenged evidence or to assess the admissibility of all of the evidence on all of the grounds asserted.

United States v. Schrage, No. CR 07-3033-MWB, 2008 U.S. Dist. LEXIS 106281 (DC N.D. Ill. October 2, 2008).

When are statements made by a prosecutor admissible at trial.  And assuming you can establish relevance and get past Mil. R. Evid. 403, under what rule.

How about Mil. R. Evid. 801 as admissions of a party-opponent.

You think I jest.  Check out United States v. Bakshinian, 65 F. Supp. 2d 1104 (DC S.D. Ca. 1999).

North County Times reports:  All defense appeals in the case of a Camp Pendleton Marine accused of manslaughter in the deaths of nine Iraqis have been exhausted and his trial date has been set.

Staff Sgt. Frank Wuterich is scheduled to go on trial at the base on Jan. 4.

The Judge’s Bench, from Grand Forks AB reports various Article 15’s.  I thought this one of interest.

Thanks to Mary Hall for pointing to Litigation Insights.  I have linked to their “newsletters.”

I have frequently commented on a number of issue relevant to members and how they should be treated, perceived, and educated, and how they may be influenced by non-verbal cues.  As some know I have some rules of engagement for clients and witnesses.  But here are links to some additional and more detailed ideas on witness preparation (including the client).

Merrie Jo Pitera, Part I, Characteristics for Improving the Credibility of Your Witness: Undesirable Verbal Witness Characteristics.

The Cape-Coral Daily Breeze reports: 

Pvt. 1st Class Andrew H. Holmes of Boise, Idaho, pleaded guilty to murder and wrongfully using a controlled substance on Sept. 22 in a plea agreement with prosecutors, according to Maj. Chris Ophardt at the Joint Base Lewis-McChord in Washington.

The following day, the judge sentenced Holmes to 15 years of confinement, but the sentence was capped at seven years as per the plea deal.

PV2 Brandon G. Rushing?

The military connection:  Some years ago, he plead guilty to, carnal knowledge and indecent acts with a child, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The judge sentenced appellant to a bad-conduct discharge, confinement for eleven months, forfeiture of all pay and allowances, and reduction to Private E1.  United States v. Rushing, ARMY 20010582, 2003 CCA LEXIS 387 (A. Ct. Crim. App. February 12, 2003).

And now: