Court-Martial Trial Practice Blog

Army Deskbook 2019

May 25, 2019 | The Law Office of Philip D. Cave

The Army TJAGSA Criminal Law Deskbook is now online.

The cover notes that the DB “reflects changes” to the MJA effective 1 January 2019. The .pdf file is bookmarked.

Interestingly, Part B of the Introduction has a justification for a separate military justice system. They say there is a need for speedy trial–a need not necessarily reflected in the speed of investigations and trials–ask anyone who does trials on a regular basis. Part C.2., reflects the commander-centric need for a military justice decision-making process.

The harmful effects of law enforcement tunnel vision

May 25, 2019 | The Law Office of Philip D. Cave

The harmful effects of law enforcement tunnel vision do not end with wrongful convictions. Tunnel vision also undermines community trust in the police and damages an already fraught relationship.

In a sexual assault case, real victims are actually harmed when false allegations are buttressed by so-called “victim-centric” investigations. When false reports are “substantiated” others watching become cynical about sexual assault allegations in general. When people do not trust the system and the witnesses produced then it becomes likely they will apply a bias against sexual assault victims.

https://www.baltimoresun.com/news/opinion/oped/bs-ed-op-0523-cooperating-witnesses-20190522-story.html?fbclid=IwAR1bK1SV2c8HBlZIFP1Nogdm7k_Y-ZRC5Nd1uKxClLhJ-G03f77FwAHN9Qo

You are presumed guilty

May 25, 2019 | The Law Office of Philip D. Cave

Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

Don’t do speaking objections in front of members

May 19, 2019 | The Law Office of Philip D. Cave

When a party objects to testimony or documents they should state “I object” and cite the evidence rule or principle and nothing else. You may be tempted, but don’t make a speaking objection.

United States v. Gurfein, NMCCA 2019, is an example of why speaking objections are improper and can cause problems. I have had trial cases where I’ve had to cut trial counsel off from making a speaking objection in front of members. I have appellate cases where the counsel and military judge engaged in a discussion of the objection (sometimes lengthy and detailed) in front of the members–this is improper.

Defense counsel–shut trial counsel down when they make speaking objections in front of members. I know judges want to save time and not inconvenience members, but you have a client who may be adversely affected by what they hear.

Statutory interpretation–plain meaning

May 5, 2019 | The Law Office of Philip D. Cave

Ordinary Causation: A Study in Experimental Statutory Interpretation

Indiana Law Journal, Forthcoming

73 Pages Posted: 9 Apr 2019

Going to confinement?

April 30, 2019 | The Law Office of Philip D. Cave

The Navy is establishing a new uniform for all detainees and prisoners in a Navy Brig (currently Charleston, Miramar, Chesapeake consolidated brigs).

https://www.wearethemighty.com/military-culture/navy-uniforms-issued-in-brig

When the prosecution requires a plea to a charge the accused isn’t provident to get a take it or leave deal.

April 17, 2019 | The Law Office of Philip D. Cave

United States v. Vick, ACCA 2019.

Prosecutors and convening authorities require an accused to plead guilty to charges which the accused is not provident, but it’s a take it or leave it deal and the accused dutifully complies, only to have the whole process go awry.

Is Vick such a case of unreasonable requirements from the prosecution.

Another in the you don’t want to start reading the CCA’s evaluation of your case this way series

April 17, 2019 | The Law Office of Philip D. Cave

Appellant argues his trial defense team was ineffective. Appellant’s argument involves mistaken identity, fraternal betrayal, technological mystery, and a healthy dose of bad luck. The argument is ambitious and engaging, it is also wrong.

United States v. Carter, ACCA 2019.

You don’t want to start reading the CCA’s evaluation of your case this way

April 8, 2019 | The Law Office of Philip D. Cave

As will be seen, this court-martial was a mess on several levels. Before discussing the facts surrounding appellant’s offenses, we are required to determine which specifications now remain before this court.

See United States v. Solomon, ACCA 2019.

Worth the Read

April 8, 2019 | The Law Office of Philip D. Cave

A case to look out for.

United States v. Frost, No. 18-0362/AR

Issue: Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.