Court-Martial Trial Practice Blog

Statute of limitations

April 20, 2014 | The Law Office of Philip D. Cave

Congress continues to tinker, rather than take a complete overview and make rational change to the UCMJ – the politics continue. Meanwhile, we have to deal with the gruel they dish out.

So, keep an eye on any changes to the statute of limitations for various sex related offenses. AND, keep an eye on any potential increases to punishments.

In Stogner v. California, 539 U.S. 607 (2003), the United States Supreme Court held that California’s retroactive extension of the statute of limitations for sexual offenses committed against minors was an unconstitutional ex post facto law. This is interesting because this would seem to apply to the California statute, if the offense has a short statute of limitations. In particular, the Court found the California law proscribed by two categories of laws designated as ex post facto in Calder v. Bull, 3 U.S. 386 (1798):

Improvements in eyewitness identification

April 18, 2014 | The Law Office of Philip D. Cave

What the witness sees and remembers is a function of many factors specific to that witness and the crime scene: the witnesses ability to see without glasses, the absence of any lighting at night. What complicates matters is the deliberate or unintentional police actions (and actions of others – see ‘memory conformity’ issues).

The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.

The problem is that decades of studies show eyewitness testimony is right only about half the time – a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.

Why wrongful convictions

April 13, 2014 | The Law Office of Philip D. Cave

There appear to be ten fairly consistent reasons for a wrongful conviction, according to a NIJ researcher.

In his series of pods Dr. Gould discusses the reasons (transcripts are available at the pod).

I often, always, talk about confirmation bias in connection with military sexual assault investigations, through the 32, and through the referral process, and potentially at trial. Dr. Gould calls it “tunnel vision.” In another portion of the pod Dr. Gould addresses discovery failures.

Center for prosecutor integrity-a resource and concerns

April 11, 2014 | The Law Office of Philip D. Cave

Center for Prosecutor Integrity.

The Center for Prosecutor Integrity is the nation’s only organization with a sole focus on enhancing prosecutorial ethics. The goals of the Center are to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions.

CPI sponsors the Registry of Prosecutorial Misconduct, supports media efforts, and partners with other groups to achieve policy reforms at the state and national levels. As a public interest law initiative, CPI does not accept individual cases.

There is an impact

April 11, 2014 | The Law Office of Philip D. Cave

Congress, commanders, and others ignore the effects of false sexual assault allegations. They don’t fit the meme. They are quite willing and happy to ignore such happenings or possible happenings.

16-year-old commits suicide after being falsely branded a rapist by drug-dealing gang. A schoolboy hanged himself after he was falsely branded a rapist by fellow pupils after pulling out of a playground drug dealing racket, an inquest heard.

Have wrongly military accused’s committed suicide as a result of false allegations – I know of at least one, and one possible one. My colleagues know of others.

On consent to sexual activity

April 11, 2014 | The Law Office of Philip D. Cave

Capacity to Consent to Sexual Risk, Elaine Craig, Dalhousie University – Schulich School of Law, 2013

Abstract:

Some evidence notes

April 11, 2014 | The Law Office of Philip D. Cave

Consistent with military law, the federal circuits generally follow the principle that evidentiary errors in a judge alone case are often nonprejudicial. The basic theory being that judges are presumed to know and apply the law, and will ignore impermissible evidence even where there has been no objection.

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a “presumption of conscientiousness” in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that “had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence,” in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701).

On a side note to this case, another caution regarding “talismanic incantations” of admissibility of other acts evidence.

Still in flux?

April 11, 2014 | The Law Office of Philip D. Cave

There should be a reassessment and there should be “amended” rules for how cell phones, tablets, and computers are searched.

Accessibility to computers and cellphones created an extraordinary change in how we communicate, and in particular how we retain and store private information about those communications. Along with the nature of the communications, the ability to retrieve that private information has also dramatically changed. No longer do we put a paper copy of a letter in a file folder and cabinet in our home. Often we carry a digital copies of that letter in our pocket, a cellphone holster, a tablet, and a laptop computer.

In the first of several posts Orin Kerr addresses the Supremes on cellphones: “The need for computer-specific Fourth Amendment rules in the cell phone search cases.”

It’s a privilege

March 29, 2014 | The Law Office of Philip D. Cave

I’ve not heard the awesome power of de novo review discussed this way.

On the basis of the entire record we cannot find that the court was wrong as a matter of law in finding an intention to desert. We are, however, by Article 66(c) of the Code privileged to say that we differ from the court in finding as a fact whether such intention existed. We determine that it did not.

United States v. Bolish, 12 C.M.R. 649 (C.G.C.M.R. 1953).

Trial craft

March 24, 2014 | The Law Office of Philip D. Cave

Brother Bill sent me a link to this Onion piece.

http://www.theonion.com/articles/partially-faded-hand-stamp-undermining-everything,30790/

It is a good teaching tool for those of us who go to court and actually try cases in front of members.