Of 100 studies published in top-ranking journals in 2008, 75% of social psychology experiments and half of cognitive studies failed the replication test.
So says a report in The Guardian.
Of 100 studies published in top-ranking journals in 2008, 75% of social psychology experiments and half of cognitive studies failed the replication test.
We do a lot of military sexual assault cases with alcohol involved. It is not unusual for a complaining witness to claim they were drunk, blacked out and didn’t consent.
First, if blacked out they can’t know they didn’t consent–it’s impossible if they were blacked out, rather than them exhibiting a convenient and selective memory.
Second, we know from medical science that a person can do a whole lot of things which does include the voluntary, and apparently consensual engagement is sexual activity. Here is an example, out of many, how a person can engage in a lot of thoughtful and physical activity and not remember it.
Military and civilian counsel military cases is bound by Service rules of professional responsibility as well as their bar. The military RPC are based on the ABA Model Rules. Thus, ABA interpretations can be meaningful and helpful.
What do you do with the client file when the case is over?
This past July, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471 Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled
Several relevant items for you this weekend.
Orin Kerr has this post at The Volokh Conspiracy. In part:
Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original.
The NMCCA has issued an interesting published opinion on a government appeal.
United States v. Rios. From the opinion.
I posted the other day about Latorre v. FCI Elkton.
A colleague who’s thoughts I value very highly had some things to say.
Worth-the-read is A PRELIMINARY DRAFT OF Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence, is the source for the ABA article I just posted about ancient documents.
There is another proposal in the Draft relevant to technology. The drafters are suggesting changing FRE 902, which as we know will likely change MRE 902 18 months later (absent action from the Prez.).
902 (13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.
The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.
A committee report (PDF) said the rule “has always been questionable” but it has been tolerated because it is infrequently used, and usually in cases where there is no other evidence on point.
Some may remember United States v. Latorre, No. ACM 34670 (A.F. Ct. Crim. App. 3 April, 2002), 64 M.J. 80 (C.A.A.F. 2006).
The case had something of a tortured appellate history, ultimately leading to a habeas corpus petition in federal court. See Background, at p.1.
Like the mythical Phoenix, Latorre sought to get some lift from the U.S. District Ct. for the Northern District of Ohio, in Latorre v. FCI Elkton.[1]
In Ehlers v. Warden, [1] the court sets out the common understanding of federal review of a court-martial.
“[T]he scope of a habeas corpus review of a military conviction is more narrow than a habeas corpus review of a conviction by a civil court.” Swisher v. United States,354 F.2d 472, 475 (8th Cir. 1966). “In military habeas corpus cases, . . . it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings—of the fair determinations of the military tribunals after all military remedies have been exhausted.” Burns, 346 U.S. at 142. Therefore, it is not the duty of the civil courts to re-examine and re-weigh each item of evidence or events which tend to prove or disprove one of the allegations in the applications for habeas corpus. Id. at 144. “It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. In other words, federal civil courts “must defer to the decision of the military court if that court has given fair consideration to the claims advanced in the habeas petition.”Gilliam v. Bureau of Prisons, No. 99-1222, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000) (citing Burns, 346 U.S. at 142-44). “[W]here an issue is adequately briefed and argued before the military courts the issue has been given fair consideration, even if the military court disposes of the issue summarily.” Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010) (quoting Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003)).
The Dist. Ct. finds that, “In his Petition, he asserts that his trial [defense] counsel [2] was ineffective during sentencing because he produced only written statements from mitigation witnesses but would not call them to testify. He claims this led to an unfairly long sentence. For the reasons set forth below, the Petition is denied and this action is dismissed.” Of interest in the court’s opinion is this observation.
While “full and fair consideration” is the universal standard for military habeas petitions, the Federal Circuits have not developed a uniform analysis to determine what constitutes “full and fair consideration” by the military courts.
After a review of cases the court went on to suggest that:
In Lips [Lips v. Commandant, 907 F.2d 808 (10th Cir. 1993)], the Tenth Circuit applied a four-part test to help determine whether the federal court may consider the merits of a military habeas case. See Lips, 997 F.2d at 811.See also Dodson v. Zelez, 917 F.2d 125, 1252-53 (10th Cir. 1990) (adopting the four-part test from the Fifth Circuit’s opinion in Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911 (1976)); see also Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003) (clarifying that the four-part test is meant to aid courts in applying Burns rather than serve as a separate hurdle to be met before review of a military court decision). In the Tenth Circuit, before reaching the merits of any claim, the federal habeas court must consider four factors:
(1) the asserted error is of substantial constitutional dimension;
The problem is that the CCA’s don’t do that enough. But at least they have the power.
The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).
Court-Martial Trial Practice Blog
