Court-Martial Trial Practice BlogThis might be of more interest to appellate practitioners, but here is a Download CAAF Proposed Changes rule changes.
Articles Posted in Worth the Read
Read this
Read this article about a New Zealand army prosecution.
What’s different about it?
Stolen honor
Here is an interesting piece by Pamla M. Sterner, The Stolen Valor Act 2005.
120 STAT. 3266 PUBLIC LAW 109–437—DEC. 20, 2006.
Vietnam Veteran Charged With Violation of the Stolen Valor Act of 2005.
Reading
There are two items in this month’s Journal of Law and Human Behavior with value and relevance to trial practice: an item on interviewing, and an item on how juries make decisions. Here are the titles, more later.
Divine, Buddenheim, Houp, Studebaker, and Stolle, Strength of Evidence, Evidentiary Influences, and the Liberation Hypothesis, Data from the Field, 33(2) J. Law & Human Behavior, 136 (2009). Easy cases are easy, but what influences a jury to decide in cases where the evidence is not clear and overwhelming – close cases?
Vrij, Leal, Granhag, Mann, Fisher, Hillman, and Sperry, Outsmarting Liars: The Benefit of Asking Unexpected Questions, 33(2) J. Law & Human Behavior, 159 (2009). Liars prepare to be questioned and they anticipate questions. So what happens when you ask a question they haven’t expected, anticipated, and thus prepared for.
Important Supreme Court decision
Here is the 21 April 2009 Supreme Court decision in Arizona v. Gant. Basically it limits the scope of a warrantless car search. In the course of its decision the court did not overrule New York v. Belton, 453 U. S. 454 (1981), but concluded Belton was misunderstood and misapplied.
This was a 5 – 4 Decision.
Here is a “news release” by the FLETC legal staff. This is what all U. S. law enforcement personnel currently attending FLETC or who get their alerts is being told about the impact of Arizona v. Gant. All CID/OSI/NCIS/CGIS agents claim to have attended FLETC. So, they are on notice and the “notice” gives you some ideas on investigative and cross-examination questions of the police if your search involves a warrantless search of an auto.
Searching cell phones
Here is a good article in the FBI LEB.
M. Wesley Clark, Searching Cell Phones Seized Incident to Arrest, 78(2) FBI Law Enforcement Bulletin, 25 (Feb. 2009).
The Army Lawyer is out
Army Lawyer, March 2009.
New CAAF case
CAAF has issued an opinion in United States v. Ranney, __ M.J. ___ (C.A.A.F. 2009). Here is the lower court opinion. I find it interesting to read the lower court opinion. You see how the two courts have taken the same record and come to a different conclusion, the selectivity with which each court views and cites the facts, and how the parties may have made different presentations.
The case is worth the read because of its discussion of Articles 90, 91, 92, UCMJ.
Fourth Amendment and privacy
Here is an interesting book review.
Prof. Orin S. Kerr, Slobogin: Privacy at Risk: The New Government Surveillance and the Fourth Amendment, 107(6) Michigan. L. Rev. 951 (2009).
A judges role at trial
Here is an interesting piece by Prof. Colin Miller about the judge who asks questions of witnesses. Prof. Colin Miller, I Won't Be The Judge Of That: Texas Appeal Reveals That The Lone Star State Doesn't Allow For Judicial Interrogation, 9 April 2009.
I think that most people would agree that judges should at least be able to ask some questions to witnesses, and as far as I know, Oregon is the only other state [other than Texas] that does not allow for judicial interrogation. But I'm not going to argue with the Texas position because I think that the Lone Star state is correct that judicial questioning can give off the appearance of judicial bias (or show actual judicial bias).
Here are the Military Rules of Evidence.