Court-Martial Trial Practice Blog

CP and 414

January 10, 2013 | The Law Office of Philip D. Cave

As noted in yesterday’s post, Federal Rule of Evidence 414(a),

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let’s take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).

More on eyewitnesses

December 18, 2012 | The Law Office of Philip D. Cave

Slate has a piece,

The Catch-22 of Eyewitness ID, Juries trust the memory of witnesses even when they shouldn’t.

h/t How Appealing.

Rights waivers

December 16, 2012 | The Law Office of Philip D. Cave

SCOTUSBlog has this of potential interest.

The petition of the day is:

New Mexico v. Herring

IAC in the PTA process

December 16, 2012 | The Law Office of Philip D. Cave

Peeking Behind the Plea Bargaining Process

Laurie L. Levenson

Loyola Law School Los Angeles
December 11, 2012
Loyola of Los Angeles Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2012-49

Abstract:
The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors. This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.

Number of Pages in PDF File: 45

More on providency and “sodomy”

December 16, 2012 | The Law Office of Philip D. Cave

The C. G. Ct. Crim. Apps. has issued an unpublished decision in United States v. Whitaker, in which it discusses whether:

Appellant’s conviction under Article 125, UCMJ, for consensual sodomy should be dismissed because the military judge failed to discuss the corresponding liberty interest during the providence inquiry.

The court concluded it was proper to dismiss the charge.

More on eyewitness testimony reforms

December 16, 2012 | The Law Office of Philip D. Cave

I’ve posted already about the Oregon case – Oregon v. Lawson.

Here is a piece from the excellent Concurring Opinions blog about eyewitness testimony.

I would like to underscore Brandon’s point about reform efforts that are currently underway. While for the most part, the criminal justice process is stuck in a bad place (thanks to a large degree to the US Supreme Court), it is refreshing to note that a few local and state jurisdictions are moving ahead with thoughtful reforms.

“Jury” instructions

December 11, 2012 | The Law Office of Philip D. Cave

From time to time I find a need to ask for a special instruction or a rewording of a BB instruction. Here is a favorite, in BAH/TAD/TDY fraud cases:

I have asked for (but not gotten) a “Consciousness of Innocence,” instruction in cases where there is evidence to support it (cooperating with NCIS, giving a full statement, consenting to searches, other assistance. A one point I was also of the opinion that a willingness to take a polygraph examination was also indicative.). I craft it based on the prosecution friendly consciousness of guilt instruction. There appears to be acceptance in some courts of this instruction.

Federal Evidence Review continues the practice of checking it twice for federal jury instructions among the circuits. Personally I have found the Eleventh’s instruction for child por******phy cases to be an excellent resource.

Sentencing

December 10, 2012 | The Law Office of Philip D. Cave

Prof. Berman notes a unique “stale” murder/rape case in Illinois.

Speaking of the Supreme Court, two recent rulings by the Justices, Gall and Pepper, made much of considering under federal sentencing law the positive post-offense behavior by a defendant. In this case, it seems the defendant was a model citizen for more than five decades, during which time he apparently served our country in the armed services and served his local community as a police officer.

To some extent military courts already factor positive post-offense service as a sentencing consideration – it can be mitigating and show rehabilitative potential under R.C.M. 1001.

Resources in forensics bias from a different perspective

December 9, 2012 | The Law Office of Philip D. Cave

I have mentioned this article before, Michael D. Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock?, 64 ALBANY L. REV. 99 (2000). The basic theme:

This article shows that, as to proffers of asserted expert testimony, civil defendants win their Daubert reliability challenges to plaintiffs’ proffers most of the time, and that criminal defendants virtually always lose their reliability challenges to government proffers. And, when civil defendants’ proffers are challenged by plaintiffs, those defendants usually win, but when criminal defendants’ proffers are challenged by the prosecution, the criminal defendants usually lose. The article then goes on to examine, in detail, various categories of expert proffers in criminal cases, including “syndrome evidence,” polygraph, bite mark, handwriting, modus operandi, and eyewitness weakness, to shed light on whether the system bias revealed in the statistical breakdown is illusory or real. Finally, an afterword analyzes the last year’s cases, and makes observations on apparent trends.

I revisited the above because of reading today’s post on on the Concurring Opinions blog, about “Convicting the Innocent.” There is a comment to the post by Prof. Garrett asking, “if there is a double standard in forensics concerning exculpatory versus inculpatory evidence?”

Checking it twice

December 8, 2012 | The Law Office of Philip D. Cave

Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system. It seemed to work.

Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols, Texas Tech Law Review, Vol. 45, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper, 2012-70. Available at SSRN: http://ssrn.com/abstract=2181301. The author

argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials – notably judges, whose judgments depend on that process – should assume greater responsibility. The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.