Court-Martial Trial Practice Blog
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Comment on silence
Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection. Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments. This is a particular bugaboo of my when LE agents and trial counsel stray from the correct path. This involves judgment and discretion on whether to object.
When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)
It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.
Prior false reports?
“CCTV footage taken at the time of the earlier incident showed the woman walking arm-in-arm with a man, and she later conceded she made the false report because she “regretted” her contact with him.”
Yes, people do lie for what seems a silly reason. And yet the person lied on can end up in jail.
Keeping up
There a various ways to keep up with the law, politics, and policy surrounding military justice, or legal issues in general.
You can use Goodle news. This allows you to have various news items collated on the Google News website. So for example, one of my several “search terms” is “military sexual assault. Google also allows you to get email alerts for the same or more specific searches, for example, “Sinclair military sexual assault.”
I use Chrome as my browser – there are many good reasons to use Chrome in lieu of IE.
Members selection
Why do we ask members to promise that they will do the impossible?
This is a question raised in a recent The Jury Expert.
Jurors often promise to try their best to set aside prior experiences, attitudes or beliefs. But the desire to do what jurors believe is expected of them does not create the ability to do it. These factors can be reliably “set aside” only when the juror has no need to do so because the juror doesn’t view them as relevant to the case. If the juror perceives a prior experience, attitude, or belief as relevant, research demonstrates it will have some influence on the juror’s decision making by being part of the schema used to evaluate the evidence. Note that the juror’s perception of relevance is the only test that matters here. While attorneys and judges can help jurors make that assessment by clarifying what is or is not involved in the case, their own definitions of relevance are usually not shared by the jurors.
Forensic science reform news
The Forensics Science Standards Act 2012.
Stalled? Nope, gone.
The Forensic Science and Standards Act of 2014
Just in – LOL
Just in over the transom from a very reliable colleague.
A TC told him that the defense is not allowed to have a copy of the SJA pretrial advice because it is a privileged communication. Apparently the TC is not familiar with the rules – not uncommon. I do wish they’d read that red paper covered book sometimes. Strangely, R.C.M. 405(c) contains this language.
(c) Distribution. A copy of the advice of the staff judge advocate shall be provided to the defense if charges are referred to trial by general court-martial (emphasis added).
Merely a collateral consequence?
We are told, by the U.S. Supreme Court no less that sex offender registration is a collateral consequence not punishment so does not suffer ex-post facto restraints. United States v. Kebodoux involves a military person convicted at SPCM. And within the military we have case law.
But, can registration reach a point where it is in fact punitive. That’s the point of Prof. Corey Yung’s post here.
[T]he farm bill just signed into law by President Obama includes a provision denying food stamps to certain sex offenders. The provision was inserted by Senator Vitter (who ironically might be a “sex offender” who wasn’t prosecuted for hiring prostitutes) and applies to child molesters and those who commit violent sexual assaults. Notably, there are already bans on drug offenders participating in the program because there is a fear that they might trade food stamps for drugs. For sex offenders, however, it is difficult to think of any non-punitive justification for denying food stamps to sex offenders convicted before enactment of the current law. Even though the courts have bent over backwards to find various restrictions on sex offenders constitutional, it is hard to fathom a theory that would allow the Vitter amendment to be constitutionally applied to those with pre-existing convictions for sex crimes.
Not a surprise
It’s not a surprise that now the “war” need for flesh and blood is lower, that the size of the force will be lower, and that allegations of misconduct will be a reason for getting below the numbers.
Stars and Stripes has this report.
The number of U.S. soldiers forced out of the Army because of crimes or misconduct has soared in the past several years as the military emerges from a decade of war that put a greater focus on battle competence than on character.
Is there an argument here?
Another excellent blogger to follow has this post today.
D.Or.: Reasonable expectation of privacy in prescription records, and the third party doctrine does not apply to them
There is a reasonable expectation of privacy in prescription records, and the third party doctrine does not apply such that the information can be obtained by mere administrative subpoena. Oregon Prescription Drug Monitoring Program v. United States DEA, 2014 U.S. Dist. LEXIS 17047 (D. Ore. February 11, 2014):