Court-Martial Trial Practice Blog

The Canadian example

December 6, 2012 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals is tragically behind in timely action on pending and future court-martial appeals. The military appellate courts, so far have declined to take action to release an appellant pending appeal.

The Canadians set a the example.

A Standing Court Martial today sentenced Captain Daniel Moriarity, a Cadet Instructors Cadre officer, to imprisonment for a term of 12 months, dismissal from Her Majesty’s service, and reduction in rank to the rank of Second Lieutenant in relation to various sexual offences committed against two cadets in 2010 and 2011.

Can you tape the boss

December 5, 2012 | The Law Office of Philip D. Cave

Maybe.

It depends on state law – one party, all party permission; are you in a SCIF; or are you and the activity covered by 18 U. S. Code 2511?

Clearances go purple?

December 5, 2012 | The Law Office of Philip D. Cave

Transition of the Defense Industrial Security Clearance Office (DISCO) to the Department of Defense Central Adjudicative Facility (CAF)

Effective Oct. 27, 2012, the Defense Industrial Security Clearance Office (DISCO) will migrate to the DOD CAF [Central Adjudication Facility]. As a result of this migration a new version of the Joint Personnel Adjudication System (JPAS) will be deployed. All JPAS drop down menus and adjudicative decisions will reflect "DOD CAF" vice "DISCO".

Industry will continue to submit their e-QIP as they currently do. Personnel Security Investigations for Industry will continue to be adjudicated as before and there should not be any degradation of service.

Notice and demand rule change

December 4, 2012 | The Law Office of Philip D. Cave

Federal evidence review brings us information about a proposed change to Fed. R. Evid. 803(10), which by operation of Mil. R. Evid. 1102, will become “law” for courts-martial absent Presidential action (18 months after the effective date of any FRE amendment). This is an occasional issue in fraud and some theft cases.

[T]he draft amendment “would permit a prosecutor who intends to offer a certification to provide written notice of that intent at least 14 days before trial. If the defendant does not object in writing within 7 days of receiving the notice, the prosecutor would be permitted to introduce a certification that a diligent search failed to disclose" a public record or statement. Under this approach, the government would not have to produce a witness to testify about the absence of the record. The proposed amendment conforms with the "notice and demand" approach approved by the Supreme Court’s in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which called into question under the Confrontation Clause the admission of certificates to prove the absence of a public record to be used at a criminal trial.

Forensics

December 1, 2012 | The Law Office of Philip D. Cave

Here is a link to a useful site all about DNA.

And here is a link to the NIJ forensics site.

Constitutional history and such worth the read

December 1, 2012 | The Law Office of Philip D. Cave

For those interested in the history of the Constitution and its judicial interpretation, the George Washington Law Review has a:

COMMEMORATING THE 100TH ANNIVERSARY OF FARRAND’S RECORDS OF THE FEDERAL CONVENTION

edition. Volume 80, No. 5, includes:

The Ayes have it

November 30, 2012 | The Law Office of Philip D. Cave

The Supreme Court of Oregon has revisited its 30-year old rule that allowed for admission of eyewitness identification resulting from “unduly suggestive pretrial identification procedures.”

State v. Lawson consolidates two cases on the same issue, and decides en banc to recognize significant changes in the understanding and science of eyewitness identification.

The court discussed State v. Classen and its two-step five (nonexclusive) factors to consider whether an identification was “independent of suggestive procedures.” Classen had relied on Manson v. Brathwaite, 432 U.S. 98 (1977), wherein the Supremes “determined that reliability was the linchpin in determinations regarding the admissibility of identification testimony.”