Court-Martial Trial Practice

COURT OFAPPEALS-TENNESSEE (Nashville) 

See State v. Tennessee. A post-trial discovery case. The court begins, “The primary issue in this case involves the State’s delayed disclosure of obviously exculpatory evidence.” Overall a very nice cases discussing Brady-plus’s [[1]] application to post-trial matters. 

• Colin Miller in discussing this case observes that, “In Brady v. Maryland, the United States Supreme Court held that the State has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence. There is a ton of precedent analyzing when evidence is material and exculpatory. Conversely, there is sparse case law regarding what is “timely” disclosure. But Thursday’s opinion of the Court of Criminal Appeals of Tennessee in State v. Allen addressed this latter question.”

The Supreme Court has reversed CAAF in Briggs and Colins, which effectively also overrules Mangahas.

Click to access 19-108_8njq.pdf

Prof. Colin Miller begins,

Similar to its federal counterpart, Idaho Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

Here is a link to the Report of the Fort Hood Independent Review Committee.

Although the Findings in this Report outline failures in leadership, they should not be interpreted as an indictment of military commanders or the U. S. Army. While the issues raised in this Report are serious and require urgent attention, they did not result from intentional or malicious action. Rather, the climate described throughout this Report was the result of inaction in critical areas like the SHARP Program that are critical to the health and safety of our Soldiers.

This climate was the product of a mindset developed over the course of almost two decades of intense military conflicts and countering threats to the national security of this Nation around the globe. Military readiness became paramount over all other responsibilities, without fully appreciating that integrity and respect between and among Soldiers is a critical component of military readiness. Over the years, those in command at Fort Hood, however, failed to make the connection between the health and safety of the Soldiers and mission readiness. This paradigm of benign neglect was allowed to take root over time at Fort Hood, at the expense of Soldiers, particularly females in combat units. Continue reading

As the cannabis industry continues to take root state by state, the House of Representatives voted in favor of removing marijuana from the federal Controlled Substances Act.

The House voted Friday on the Marijuana Opportunity Reinvestment and Expungement Act, or MORE Act, which decriminalizes cannabis and clears the way to erase nonviolent federal marijuana convictions. The Senate is unlikely to approve the bill.

So reports NBC News.

Several years ago, Beth Van Schaack highlighted a gap in U.S. law regarding atrocity crimes. Although well established in international criminal law as well as other areas of U.S. law, Title 18 of the U.S. Code lacks command responsibility as a mode of criminal responsibility. Following the issuance of pardons by President Donald Trump, Gabor Rona drew renewed attention to command responsibility as a mode of liability.

Brian Finucane, A Commander’s Duty to Punish War Crimes: Past U.S. Recognition. Just Security, 4 December 2020.

This duty to punish has been an element of command responsibility since at least the Hundred Years’ War. In 1439, King Charles VII of France issued an ordinance identifying the failure of a commander to discipline a subordinate as a basis for the punishment of the commander.

04122020–UP PERISCOPE

That means the change will likely come to the MRE effective 18 months from now absent action by the Prez.

See MRE 1102.

• The defense will no longer be required to make a demand for notice—prosecution must disclose regardless of a request!

Courtesy of Global Military Justice Reform blog.

The Conference Report for the proposed William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 is now out and can be found here. Readers will want to look in particular at § 542, which imposes a 12-years-of-law-practice qualification for judges of the service Courts of Criminal Appeals and alters the current provision on factual sufficiency review by those courts. It’s found at pp. 544-48. Here is the conferees’ explanation:

Qualifications of judges and standard of review for Courts of Criminal Appeals (sec. 542)

Click to access CRPT-116hrpt617.pdf