Articles Posted in Up Periscope

United States v. Jones.

A convoluted case about the accused’s ability to review CP images in preparation for his providence inquiry.

We conclude that the denial of the requests to review
evidence under the circumstances of this case did not
violate the Sixth Amendment because Appellant did not seek
to review the evidence to prepare a defense, and that
Appellant’s unconditional guilty plea waived appellate
review of the denial of his discovery requests under Rule
for Courts-Martial (R.C.M.) 701.  And we agree with the
NMCCA that, considering the stipulation of fact in
conjunction with Appellant’s providence inquiry, there was
no substantial basis in law or fact for the military judge
to reject Appellant’s guilty plea in this case.  Jones,
2009 CCA LEXIS 356, at *21, 2009 WL 3435920, at *7.

As federalevidencereview notes:

[A]llowing a court to take judicial notice often presents a proponent of its use with a useful short-cut in proof of adjudicative facts. But it is important to draw a distinction between the fact noticed and the logical conclusion to be drawn from the fact.

From time to time you will see a prosecutor want to have judicial notice of facts, but include in their motion their argument or conclusions.  Remember that there must be a foundation for the notice offered at the time of the request.  For example a calendar for judicial notice that a date fell on a particular day of the week, or a copy of the regulation or statute. 

Federal Evidence Review now has their annual retro and prospective reviews of noteworthy evidence issues for 2010 and 2011 online.

Key Evidence Issues During 2010

1. Supreme Court Watch: Briscoe v. Virginia – Confrontation Clause – No New Guidance On Forensic Laboratory Analysis

Good luck to any court-martialed sailor or Marine who is found guilty of violating the Uniform Code of Military Justice and tries to appeal.

Luck is indeed what they may need, given the shortcomings of the appeals process cited by the Defense Department Inspector General.

The IG released a damning report in December, slamming the Navy and Marine Corps for “at least two decades” of serious deficiencies in handling appeals of general and special courts-martial convictions.

Military.com reports:

An Army appeals court on Friday declined to order that gruesome Afghan corpse photographs taken by Washington state-based soldiers be made public.

Pfc. Andrew Holmes, of Boise, Idaho, is one of five soldiers at Joint Base Lewis-McChord charged in the deaths of three civilians in Kandahar Province last year. He filed a petition asking the Army Court of Criminal Appeals to allow him to present the sensitive photographs during a preliminary hearing in his case.

United States v. Stefan is a 5-0 opinion written by Judge Stucky.  In a nutshell:

We granted review to determine whether the chief of  military justice was disqualified from preparing the addendum to the staff judge advocate’s recommendation (SJAR) because, before trial, she had caused the charges to be served on the accused.   We hold that she was disqualified under Article 6(c), Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 806(c) (2006), and Rule for Courts-Martial (R.C.M.) 1106(b), but Appellant was not prejudiced.