Real and to be expected-a natural consequence of how Congress and perhaps leadership is approaching the real and very important issue of preventing sexual assault?
Military.com reports, In Survey, Lackland DIs Rip Leaders, Fear Recruits, 29 May 2014.
A survey of basic-training instructors conducted during the worst sex scandal in Air Force history revealed a sharp distrust of senior commanders at Joint Base San Antonio-Lackland and a widespread fear of recruits.
The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page). The granted issue was:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).
BLUF: We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.
What are the full limits of confrontation when it comes to scientific and expert testimony.
Federal evidence blog notes:
In denying certiorari review (this week0 in eleven cases raising Confrontation Clause and expert testimony issues, for the foreseeable future the Supreme Court will not resolve a significant issue that has been dividing the lower court; it remains to be seen when the guidance urged by the lower courts will be provided.
By regulation (the U.S. Navy Regulations and the Navy’s Standard Organization and Regulations Manual (SORM), OPNAVINST 3120.32x,), the Navy required personnel to report having been arrested or prosecutions for criminal acts by civilian authorities.
In United States v. Serianne, 68 M.J.580 (N.M.Ct.Crim.App. 2009), aff’d, 69 M.J. 8 (C.A.A.F. 2010). the courts found the order unlawful, in violation of a members right against self-incrimination under the Fifth Amendment, U.S. Constitution.
In response to Serianne, the Navy issued a new order (ALNAV 049/10 dtd 21 Jul 2010; NAVADMIN 373/11, 08 December 2011.7
You are an enlisted person.
1. You are reduced at Art. 15 from E-6 to E-5, you retire as an E-5. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980.
2. You are reduced at special court-martial from E-9 to E-6, you retire. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980.
3. You are reduced at special court-martial from E-7 to E-4, you have sufficient time and you are re-promoted and serve in grade as an E-6 at the time you retire. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980. Continue reading
Prof. Colin Miller has an interesting post about prosecutorial discretion during the course of trial.
Besides getting a conviction and an appropriate sentence, a secondary gain of the prosecutor is to have the case affirmed on appeal. Affirmance means a guilty person doesn’t walk or get a new trial.
In the post Prof. Miller refers to a successful prosecution objection excluding “compelling defense evidence,” on what he terms a technicality. He closes his post:
Senator Gillibrand is not happy.
Here is one of her unsubstantiated complaints. I am quite sure that some of those committing sex offenses have done so before, and with predatory behavior. But casting the vast majority of he said/she said cases as predatory men assaulting angelic waifs who can’t care for themselves is sexist and engaging in gender politics.
“More reporting is not the end game,” Gillibrand said. “Justice and removing recidivist predators from the military so they cannot commit more crimes to arrest the problem is the end game.
Human lie detector’s not admissible, still, a strong circuit trend. This is consistent with military appellate case law.
With expert testimony admitted on a wide range of issues under FRE 702, what limits are there to expert testimony on the credibility of the defendant? As noted by the Tenth Circuit, a consensus in disallowing this expert testimony has emerged among the circuits; plain error resulted from the admission of this expert testimony requiring reversal of the conviction, inUnited States v. Hill, _ F.3d _ (10th Cir. April 28, 2014) (No. 12-5154)
One area of expertise may involve determining whether a witness is credible. Certain specialized training and techniques have been developed to gauge the credibility of a witness during an interview. While this expertise may be useful and employed during an interview, it is generally inadmissible at trial under FRE 702. The Tenth Circuit reviewed and reinforced its exclusion of such expert testimony, finding such exclusion the practice of other circuits as well. While there was no objection lodged at trial to the expert testimony, the circuit found the admission of this expert testimony constituted plain error.
With the ongoing politics surrounding sexual assault in the military, and whether the commander should remain as the disciplinary decision maker, the AF has done an interesting review of (convictions).
After a spate of sex-related incidents last year, the Air Force reviewed all courts-martial from the previous three years — more than 2,400 cases — and found 25 instances in which a commander disagreed with a judge advocate general’s recommendation, Air Force Chief of Staff Gen. Mark Welsh said.
I am assuming they mean that the CA granted either clemency or dismissal of one or more findings post-trial. The article goes on to say:
U.S. District Court (Northern District of Iowa)
Court-Martial Trial Practice Blog
