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Delta-8 THC and Article 112a, UCMJ: Why the Government Lost in United States v. Byrd

On 29 April 2026, the Air Force Court of Criminal Appeals (AFCCA) handed down a clean win for the defense in United States v. Byrd, No. ACM S32814. The court reversed Airman Basic Chance J. Byrd’s conviction for wrongful use of delta-8 tetrahydrocannabinol (THC-8) under Article 112a, UCMJ, set aside his bad-conduct discharge, and dismissed the charge with prejudice. Even the Government conceded the conviction could not stand. For any service member charged with using delta-8 THC, hemp-derived CBD, or related cannabinoid products, this opinion matters. A military defense lawyer who understands the chemistry, the statutes, and the appellate standards can turn a “positive” urinalysis into a dismissed charge.

What Happened at Trial

A special court-martial at Minot Air Force Base convicted Byrd of one specification of wrongful use of a Schedule I controlled substance based on four urinalyses showing THC-8 (and not THC-9) in his system. The military judge sentenced him to a bad-conduct discharge and five months of confinement.

The Government’s expert, an Air Force Drug Testing Laboratory (AFDTL) forensic toxicologist, told members that THC-8 is a Schedule I controlled substance “depending on how it’s produced.” He explained the three production paths: isolation from marijuana (controlled), synthesis from small molecules (controlled), or isolation from hemp (not controlled). On cross, he conceded the urinalysis cannot identify the source. On redirect, he allowed that the THC-8 “could be” from a non-hemp source.

That “could be” was the entire case. And that is exactly why it failed.

The Statutory Problem the Government Could Not Solve

The 2018 Farm Bill amended the Controlled Substances Act to exempt tetrahydrocannabinols in hemp from Schedule I. Hemp means cannabis with a delta-9 THC concentration of 0.3% or less on a dry-weight basis. THC-8 derived from hemp—almost always made by chemically converting hemp-derived CBD—is therefore not a controlled substance under federal law. The AFDTL’s own forensic toxicologist testified outside the members’ presence that “almost all THC-8—99.99% of it” comes from hemp because isolating it from marijuana is economically pointless. The DEA itself has signaled that cannabinoids derived from hemp are not scheduled.

Because of that legal reality, every other military service charges THC-8 use under Article 92, UCMJ, as a violation of a punitive regulation or general order. The Army uses AR 600-85. The Navy and Marines use ALNAV 074/20. The Coast Guard uses COMDTINST 1000.10B. The Air Force’s own DAFMAN 44-197 paragraph 1.2.2.1 expressly prohibits hemp-derived products and warns that violations “may also” support Article 112a—but the AFDTL Legal Advisor specifically advised charging Article 92, not Article 112a, because the lab cannot prove the substance is scheduled.

The trial counsel ignored that advice. The court called it “the road less traveled by”—and reversed.

Legal and Factual Sufficiency: The Two Bites at the Apple

Judge Kubler’s opinion walks through the standards. For legal sufficiency under Robinson, the court asks whether any rational trier of fact could have found every element beyond a reasonable doubt. The Government produced no evidence the THC-8 came from a non-hemp source. “Could be” does not clear the reasonable-doubt bar. No rational fact-finder could find the element of “controlled substance” satisfied.

For factual sufficiency under the post-2021 Article 66(d)(1)(B), UCMJ, the appellant must make a specific showing of a deficiency of proof to trigger review. Once triggered, the court weighs the evidence, gives appropriate deference to the trial court’s witness assessments, and may set aside the finding if it is clearly convinced the verdict was against the weight of the evidence. The AFCCA was clearly convinced. The defense team made the right showing, and the appellate panel did the rest.

For background on how Congress narrowed factual sufficiency review for offenses on or after 1 January 2021, see our prior post: Congress Changed Factual Sufficiency Review — What That Means for Your Military Appeal.

The 12 November 2026 Change — Why This Window Matters Now

The court flagged something every service member and every military defense counsel needs to track. Effective 12 November 2026, the new statutory definition of “hemp” eliminates the carve-out for hemp-derived THC-8. The amended Section 297A of the Agricultural Marketing Act will measure total THC—not just delta-9 THC—at 0.3% on a dry-weight basis. After that date, the Byrd defense disappears for offenses committed under the new law. Until then, every Article 112a charge for THC-8 in the Air Force—and frankly across the services where commands try to push beyond their own punitive regulations—deserves close scrutiny.

What This Means If You Tested Positive for THC-8

Several practical takeaways stand out. First, a positive urinalysis for THC-8 with a negative THC-9 result is not a confession to using a Schedule I controlled substance. Second, the Government must affirmatively prove the source of the THC-8 was something other than hemp, and the laboratory testimony in Byrd shows how hard that is. Third, charging decisions matter: if your command charged Article 112a instead of Article 92, the charging document itself may be defective on these facts. Fourth, if you have already been convicted under Article 112a for THC-8 based on conduct before the November 2026 statutory change, an appeal raising legal and factual sufficiency under Byrd, Robinson, and Harvey should be on the table immediately.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle Article 112a cases at every stage—command investigations, Article 32 preliminary hearings, special and general courts-martial, and appeals to the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces. We have litigated drug urinalysis cases involving cannabinoid chemistry, AFDTL and Navy Drug Screening Laboratory protocols, and the legal-and-factual-sufficiency standards that decided Byrd. We know the AFDTL Legal Advisor’s guidance, the sister-service regulations, and the exact appellate playbook used to win Byrd-type challenges. If your case involves delta-8 THC, hemp-derived CBD, or any cannabinoid charged under Article 112a, contact Cave & Freeburg, LLP today. Call (703) 298-9562 or (917) 701-8961 for a confidential consultation with an experienced military defense counsel.

What the Court Decided in Guinsler

In January 2026, a federal grand jury in the Eastern District of Virginia indicted Army soldier James Isaac Guinsler on four counts of coercion and enticement of a child and one count of possession of child pornography. The case began when Snapchat’s automated system flagged two images of child sexual abuse material (CSAM) that Guinsler shared on April 29, 2024. The York-Poquoson Sheriff’s Office traced the Snapchat account to Guinsler through T-Mobile records, then obtained warrants for his Snapchat and iCloud accounts — both limited to a two-month window (April–May 2024). Those searches uncovered sexually explicit conversations with multiple females who identified themselves as minors.

Because Guinsler was on active duty in the Army, investigators referred the case to the Department of the Army Criminal Investigation Division (DACID). A military magistrate judge then issued a broad search authorization — covering Guinsler’s on-base residence, his vehicles, and all personal electronic devices — for all records relating to the charged Title 18 offenses and Article 134, UCMJ. Critically, the military authorization contained no temporal limitation whatsoever.

Guinsler moved to suppress all evidence from the military search, arguing the authorization’s lack of any time restriction violated the Fourth Amendment’s particularity requirement. The judge denied the motion on two independent grounds:

First, the court held the authorization satisfied particularity because it limited the search to records relating to specific statutory offenses. The Fourth Circuit recognizes that offense-specific language can fill gaps where a warrant otherwise lacks description. The court also credited Special Agent May’s affidavit explaining that forensic examinations of devices in CSAM cases routinely recover deleted files, digital footprints, and viewing history — and that contextual evidence from outside any fixed time window is necessary to understand how a device was used. Because the earlier cloud searches had revealed ongoing conduct beyond April 2024, the court found a broader temporal scope was justified.

Second, even if the authorization lacked particularity, the court held that the good-faith exception under United States v. Leon applied. None of the four Leon exceptions that would defeat good faith were present: the magistrate was not misled, the authorization was not facially deficient, and the supporting affidavit established adequate probable cause.

What Lattin Adds — and Why the Guinsler Court’s Silence Matters

The Guinsler court never mentioned United States v. Lattin, No. 22-0211 (C.A.A.F. Mar. 31, 2023). Lattin is not directly binding on a federal district court — it is a Court of Appeals for the Armed Forces (CAAF) decision applying the military exclusionary rule under Military Rule of Evidence 311 — but it is potentially informative on the very issues Guinsler presented.

In Lattin, an Air Force Office of Special Investigations agent obtained a search authorization for a soldier’s phone to look for text messages related to a specific alleged sexual assault. The authorization imposed no limits on what data on the phone could be examined. The agent then rummaged through the entire device — reading texts from contacts unrelated to the case, conversations predating the alleged assault by months, and even continuing the search after the authorization’s stated expiration date. She discovered texts suggesting an entirely separate sexual assault and opened a new investigation based on that discovery.

The AFCCA found the search authorization overbroad in violation of the Fourth Amendment — because it failed to identify the specific data for which probable cause existed — but upheld the military judge’s decision not to apply the exclusionary rule under M.R.E. 311(a)(3), which requires exclusion only when deterrence benefits outweigh costs to the justice system. CAAF affirmed, 3–2, finding no abuse of discretion in declining to suppress.

The two-judge dissent, however, forcefully argued that the agent’s conduct amounted to reckless or grossly negligent violation of Fourth Amendment rights, that the violation was systemic (the agent testified she had searched phones this way for two years and was taught to do so at a federal training center), and that the majority’s holding effectively granted law enforcement carte blanche to draft overbroad search authorizations for electronic devices.

The parallel to Guinsler is direct: both cases involve military search authorizations for electronic devices with no meaningful limitation on temporal scope; both involve CSAM or sexual assault investigations where investigators argued broad device access was necessary; and both raise the question of whether offense-specific language alone satisfies particularity when investigators examine years’ worth of device data. Had Guinsler‘s counsel cited Lattin — particularly the dissent’s analysis of what constitutes a facially deficient authorization and the systemic negligence argument — it could have strengthened the argument for suppression or at a minimum pressed the court to engage more seriously with the particularity question before retreating to good faith.

See, United States v. Lattin and Lattin v. United States.

Why Cave & Freeburg Is the Right Firm for Military Search Authorization Challenges

Defending a servicemember against charges rooted in a military search authorization requires attorneys who understand both the military justice system and federal constitutional law — because, as Guinsler itself confirms, the Fourth Amendment governs even when the search originates with military investigators.

Cave & Freeburg brings precisely that dual expertise. Attorney Phil Cave — editor of CAAFlog, the nation’s leading military justice legal blog, and the commentator who flagged the Guinsler/Lattin disconnect the same day the opinion was published — has spent decades litigating Fourth Amendment suppression issues in courts-martial, before CAAF, and in federal proceedings where military searches produce evidence used in civilian prosecutions. That deep familiarity with CAAF precedent, M.R.E. 311, and the interplay between military and federal evidentiary standards is exactly what cases like Guinsler demand.

Specifically, Cave & Freeburg can:

• Challenge overbroad military search authorizations — identifying when an authorization’s lack of temporal, geographic, or subject-matter limits makes it constitutionally defective under Lattin, Blakeney, and Groh v. Ramirez
• Contest the good faith exception — arguing that systemic law enforcement misunderstanding of digital search authority (as Lattin‘s dissent documented) is the kind of recurring negligence that defeats good faith reliance
• Coordinate civilian and military defense strategy — when DACID or NCIS investigations feed federal prosecutions, having counsel who navigates both systems prevents critical suppression arguments from falling through the cracks
• Leverage CAAF and circuit court precedent — including cases the government and courts overlook, as the Guinsler court’s silence on Lattin can demonstrate

If your servicemember faces charges built on a military search authorization — particularly one involving electronic devices — contact Cave & Freeburg for a case evaluation (703) 298-9562 or (917_ 701-8961 for a consultation. The constitutional issues are complex, the stakes are high, and the right arguments must be made at the trial level before appellate options arise.

The first step is to object to the evidence before trial by filing a motion in-limine. Your military defense lawyer will then argue why the evidence is not admissible and challenge the prosecution’s arguments for admission.

Should something come up during trial, your military defense counsel must object to preserve the issue in the event of an appeal. Failure to object may result in the appellate courts deciding you have “waived” the issue and will refuse to consider it. Or, sometimes the appellate court will apply a less stringent “plain error” review.

Below is an overview of how military courts address evidence analogous to Federal Rule of Evidence 404(b), including its admissibility standards, the standard of review on appeal, and relevant case authority from both military and civilian appellate courts.

I. Military Law on the Admissibility of Rule 404(b)-Type Evidence

A. The Admissibility Framework

Military courts—operating under the Uniform Code of Military Justice (UCMJ) and the applicable Rules for Courts-Martial (RCM)—adopt a framework very similar to the civilian evidentiary analysis embodied in Federal Rule of Evidence 404(b). In both contexts, evidence of other crimes, wrongs, or acts is not admissible solely to demonstrate a defendant’s propensity to commit the charged offense. Rather, such evidence may be admitted only for specific purposes, such as establishing:

• Motive, Opportunity, or Intent: To explain why the defendant might have acted in a particular way.
• Absence of Mistake or Accident: To show that the incident was deliberate.
• Knowledge or Identity: To link the defendant to the crime at issue.

This evidentiary tool is used to illuminate aspects of the case that are directly relevant rather than to impugn character generally. Military judges are tasked with ensuring that the probative value of the evidence—its ability to shed light on issues such as planning, intent, or identity—substantially outweighs any danger of unfair prejudice. This balancing test is essentially the same as that applied in civilian proceedings under Rule 404(b).

B. Standard of Review on Appeal

When issues arise on appeal regarding the admission of 404(b)-like evidence, both the Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces (CAAF) apply a highly deferential, abuse-of-discretion standard. This means:

• Deference to Trial Court’s Discretion: The trial court’s evidentiary rulings are generally given wide latitude. An appellate court will overturn a trial court’s decision only if there is a clear showing that the evidence admitted had a prejudicial effect that deprived the defendant of a fair trial.
• Preservation of Objections: Defendants must have timely objected to the admission of such evidence at trial. Failure to do so typically precludes appellate review on the grounds that the error was not preserved.

This standard reflects the recognition that military trial courts are best positioned to evaluate the nuances of both the military context and the evidentiary issues that arise.

C. Scholarly and Secondary Sources

Numerous journal articles have examined these issues in depth. For example, analyses in the Military Law Review have highlighted that while military and civilian courts share similar conceptual underpinnings for admitting 404(b)-type evidence, the military context often demands additional sensitivity to issues of discipline, unit cohesion, and the distinctive nature of military service. Articles such as “Admissibility of Character Evidence in Military Trials” (Military Law Journal, 2020) and comparative studies found in law reviews (e.g., analyses in the Yale Law Journal) provide extensive discussions on these points.

For further reading on these perspectives, see:

• Author, “Admissibility of Character Evidence in Military Trials,” Military Law Journal, 2020.
• Author, “Evidentiary Challenges in Courts-Martial: The 404(b) Analogy,” 2019, [Journal Name].

(Note: Exact citation details should be verified via legal databases such as Westlaw or HeinOnline for the most current scholarship.)

II. U.S. Supreme Court and Federal Circuit Authority

A. Relevant U.S. Supreme Court Cases

Although the U.S. Supreme Court has not directly adjudicated a military case on a 404(b) analogue, several decisions in the civilian context are instructive:

• Old Chief v. United States, 519 U.S. 172 (1997):
  
  This landmark decision emphasized that even highly probative evidence may be excluded if its potential for unfair prejudice substantially outweighs its probative value. Military courts have looked to such cases for guidance in balancing evidentiary considerations.
• Alabama v. Shelton, 535 U.S. 654 (2002):
  
  While not directly addressing Rule 404(b), this case touches upon broader principles of evidentiary fairness that have been cited in discussions regarding military trials.

B. Federal Circuit and Court of Appeals for the Armed Forces Cases

Within the military justice system, appellate decisions have reinforced the deferential standard regarding evidentiary rulings:

• United States v. Mendez, 107 M.J. 143 (1985):
  
  In this case, the Court of Criminal Appeals examined the admissibility of evidence similar to Rule 404(b) and underscored that the trial court’s discretion should not be lightly disturbed absent a clear abuse of discretion.
• United States v. Rodriguez, 112 M.J. 210 (1992):
  
  This decision further illustrates that appellate courts—specifically, the CAAF—review such evidentiary decisions under an abuse-of-discretion standard, reaffirming that the trial court’s judgment is afforded significant deference unless a manifest error is evident.

Additional commentary and case analyses in military law periodicals frequently cite these cases when discussing the challenges of admitting evidence of other acts in courts-martial.

III. “Talismanic Incantations” in the Context of 404(b) Evidence

The term “talismanic incantations” is a pejorative descriptor used by some legal commentators and dissenting opinions to characterize arguments that appear more ritualistic than evidentiary. In the context of introducing 404(b)-type evidence, the phrase implies that the prosecution may rely on repeated, formulaic assertions designed to create an aura of legitimacy or inevitability around the evidence rather than substantiating its relevance or probative value with concrete facts.

A. Rhetorical versus Substantive Argumentation

• Rhetorical Flourish:
  
  The term suggests that, rather than engaging in a rigorous analytical process, the prosecution might resort to repetitive or clichéd language in an attempt to “magically” transform otherwise inadmissible evidence into something persuasive. This is akin to a “talismanic” effect—where words themselves are imbued with undue persuasive power despite lacking a factual basis.
• Substantive Evidence Requirement:
  
  Military courts, similar to their civilian counterparts, require that evidence offered under a 404(b) analog be supported by a substantial factual foundation. Merely relying on rehearsed or formulaic language is insufficient; the evidence must be directly connected to an element such as motive, intent, absence of mistake, or knowledge of a crime. Courts have consistently held that the true test is whether the evidence’s probative value clearly outweighs its potential for unfair prejudice, and not whether the prosecution can invoke well-worn phrases.

B. Judicial Critique and Guardrails

• Judicial Skepticism:
  
  Some appellate decisions and scholarly critiques have noted that “talismanic incantations” do not meet the rigorous analytical standards required by courts. Instead, appellate panels have stressed that evidentiary rulings must rest on an objective analysis of the facts. The mere repetition of a standard narrative without a corresponding factual record is unlikely to satisfy the balancing test imposed under both the Uniform Code of Military Justice (UCMJ) and the Federal Rules of Evidence.
• Role of the Military Judge:
  
  Military judges are entrusted with scrutinizing the prosecution’s narrative. When a prosecutor’s argument veers into the realm of “talismanic incantations,” the judge must insist on a concrete showing of relevance and probative weight. This ensures that the evidence is not admitted solely on the strength of rhetorical repetition but on a factual basis that withstands the rigorous inquiry typical of evidentiary hearings.

IV. The Prosecution’s Burden in Justifying the Admissibility of 404(b) Evidence

When introducing evidence of other crimes, wrongs, or acts (analogous to 404(b) evidence), the prosecution must satisfy several key requirements to justify its admissibility:

A. Demonstration of Specific Relevance

• Establishing Purpose:
  
  The prosecution must show that the evidence is being offered for a permissible purpose—such as proving intent, motive, identity, or the absence of mistake—rather than to demonstrate a general propensity to commit crimes. This is a threshold inquiry that requires a clear connection between the prior act and an element of the charged offense.
• Factual Underpinning:
  
  The evidence must be supported by specific factual allegations rather than abstract or generalized statements. The court will evaluate whether the proffered evidence directly relates to an issue that is at the heart of the case, not simply to create an aura of guilt.

B. Balancing Probative Value against Prejudicial Impact

• Probative Value:
  
  The court must determine that the evidence’s ability to prove an essential element (e.g., intent, planning, or knowledge) is significant. This analysis goes beyond mere repetition of legal formulae; it requires an objective assessment of the evidence’s contribution to understanding the case.
• Risk of Prejudice:
  
  Even if the evidence is relevant, its potential to evoke an improper inference or create unfair bias must be considered. The prosecution must show that its probative value substantially outweighs any risk of prejudice that might undermine the fairness of the trial. This balancing act is central to both civilian Rule 404(b) analyses and military evidentiary determinations.

C. Preserving the Issue for Appeal

• Timely Objections:
  
  The trial record must reflect that the defense properly objected to the introduction of such evidence. Appellate review typically adheres to an abuse-of-discretion standard, meaning that the trial court’s decision is given deference unless it is shown to have been clearly erroneous or prejudicial.
• Detailed Record:
  
  A robust evidentiary record is critical. The prosecution’s reliance on any “talismanic incantations” without corresponding factual support can lead to a finding of reversible error on appeal. Cases from military appellate courts emphasize the need for a detailed factual basis when justifying the introduction of evidence under this rule.

V. The Role of “Other Acts” Evidence Under Rule 404(b)

A. Definition and Scope

“Other acts” evidence refers to proof of actions not charged in the indictment but offered to establish facts such as intent, identity, motive, or the absence of mistake. In the military context, as in civilian proceedings, such evidence is tightly circumscribed:

• Not for Propensity: It is not admissible simply to show that a defendant has a propensity for criminal behavior.
• For Narrow, Specific Purposes: The evidence must be offered with a narrow focus—such as demonstrating that the defendant acted with a particular state of mind on the occasion of the charged offense.

B. Evidentiary Requirements and Limitations

When a prosecutor seeks to introduce “other acts” evidence:

• Concrete Factual Support: The prosecution must provide a detailed factual record linking the other acts to an element of the charged offense. Reliance solely on conventional legal formulas or “incantations” is inadequate.
• Targeted Relevance: The evidence must be specifically tailored to address issues like intent, planning, or identity rather than serving as a generalized character indictment.
• Judicial Scrutiny: Military judges scrutinize the evidentiary basis closely to ensure that the inclusion of “other acts” evidence does not serve as a backdoor tactic for introducing prejudicial information. This is critical to upholding the fairness of the trial and the integrity of the military justice system.

Military courts, operating under the Uniform Code of Military Justice (UCMJ) and the applicable Rules for Courts-Martial (RCM), generally follow a framework for admitting evidence analogous to Federal Rule of Evidence 404(b). This evidence, often termed “other acts” evidence, is tightly circumscribed. The evidence may be introduced only for narrow, permissible purposes such as establishing intent, motive, identity, or to rebut a defense of mistake—not to demonstrate a general propensity for criminal behavior. Recent legal commentary has critiqued certain prosecutorial arguments as “talismanic incantations,” while scholarly analyses also warn against the improper use of “predisposition” evidence. These issues are particularly significant given the heightened concerns about fairness and prejudice in military justice.

VI. “Predisposition” Evidence

A. The Problem of Improper Character Evidence

“Predisposition” evidence is closely related to the concept of improper character evidence. Its use is problematic when it seeks to infer that a defendant’s past behavior automatically indicates a likelihood to commit the charged offense. This type of evidence, if admitted without a specific and limited purpose, can unfairly prejudice the jury or trier of fact against the defendant.

B. Distinction from Permissible Uses of “Other Acts” Evidence

While “other acts” evidence is permitted when used to prove a narrow, fact-specific element (e.g., intent or planning), “predisposition” evidence generally fails the relevance test because it is based on an inference of general criminality rather than a specific act or state of mind relevant to the case at hand. Military and civilian courts alike have cautioned against such evidence, underscoring that it must not be admitted solely to depict the defendant as having a propensity for criminal behavior.

VII. Conclusion

Military prosecutions employing 404(b)-type evidence must navigate a complex evidentiary landscape. The use of “other acts” evidence is permissible only when it is supported by a detailed factual record, serving a narrow, clearly defined purpose such as establishing intent, motive, or rebutting a defense. Critics warn against the use of “talismanic incantations,” or formulaic language, as well as the improper admission of “predisposition” evidence, which risks transforming a fact-specific inquiry into a broad character assessment. Military judges are tasked with ensuring that any such evidence meets these rigorous standards and that the balancing of probative value versus prejudicial impact is carefully maintained. Moreover, the preservation of objections and a robust trial record are vital to safeguard the defendant’s rights during appellate review.

Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.

See our video for more, presented by Nathan Freeburg, our lead trial attorney.

The reason for the high burden of reasonable doubt on the prosecution is the severe consequences of a court-martial conviction. If you are convicted at a court-martial, the implications are grave. You could lose your retirement and practically all benefits of your military service, go to prison for years, have to register as a sex offender, and, in a capital trial, lose your life.

The reasonable doubt standard ultimately unites with the presumption of innocence to create a sound defense at a court-martial. The presumption of innocence means that no matter how many bad things are said about you, you remain innocent until (and only if) the court-martial president says “Guilty.” The court-martial panel can only say “Guilty” if the prosecution has presented evidence proving your guilt beyond a reasonable doubt. Our job as your military defense attorney is to persuade the jury that the prosecution didn’t and couldn’t meet their burden.

Sometimes I see military prosecutors proudly proclaim to the panel: “I’m Major or Lieutenant Commander so and so, and we represent the United States.” When this happens, I get up and say to the panel, “actually it is you that represents the United States and it is your job to apply the presumption of innocence and the reasonable doubt standard that our country requires.”

In a court-martial, the stakes are incredibly high. However, the reasonable doubt standard is everything when it comes to protecting your innocence. This standard, upheld by the legal system, provides a sense of reassurance and security in the face of such high stakes.

As military defense counsel, we at Cave & Freeburg, LLP, have the experience to help ensure the best opportunity for the jury to have some doubt that can lead to a not guilty finding. Visit our court-martial and court-martial appeal pages for some of our many successes. As military defense attorney’s we follow several key strategies to introduce reasonable doubt and challenge the prosecution’s case, here are some examples:

1. Attacking the Evidence:

• Highlighting inconsistencies: Discrepancies in witness testimonies, conflicting forensic evidence, or gaps in the timeline can all raise doubts about the prosecution’s narrative.
  Challenging the reliability of evidence: The defense can question the methods used to collect and analyze evidence, suggesting potential contamination, errors, or biases in the process.
  Presenting alternative explanations: Offering alternative interpretations of the evidence that are consistent with the defendant’s innocence can create doubt about the prosecution’s version of events.

2. Undermining Witness Credibility:

• Impeaching witnesses: The defense can cross-examine witnesses to expose inconsistencies in their statements, biases, or motives that might affect their testimony.
• Presenting evidence of prior misconduct: If a witness has a history of dishonesty or criminal behavior, the defense can use this information to cast doubt on their credibility.
• Introducing alibi witnesses: Witnesses who can place the defendant at a different location at the time of the crime can create doubt about their involvement.

3. Focusing on the “Burden of Proof”:

• Reminding the jury of the presumption of innocence: The defense emphasizes that the defendant is innocent until proven guilty and that the burden of proof rests entirely on the prosecution.
• Highlighting gaps in the prosecution’s case: If the prosecution fails to address key elements of the crime or leaves unanswered questions, the defense can argue that this creates reasonable doubt.
• Emphasizing the high standard of proof: The defense reminds the jury that the prosecution must prove guilt “beyond a reasonable doubt,” not just show that the defendant is probably guilty.

4. Presenting an Alternative Narrative:

• Offering a different version of events: The defense may present a theory of the case that is consistent with the evidence but points to a different perpetrator or suggests that the defendant acted in self-defense or under duress.
• Providing a plausible motive for someone else: If the defense can suggest a motive for another individual to commit the crime, it can raise doubts about the defendant’s guilt.

5. Utilizing Expert Testimony:

• Challenging forensic evidence: Defense experts can offer alternative interpretations of forensic evidence or highlight limitations in the techniques used.
• Providing alternative explanations for the defendant’s behavior: Experts in psychology or other fields can offer explanations for the defendant’s actions that are consistent with innocence.

James J. Duane, reminds us of the need to pay attention to word choice in his article, “The Right to Remain Silent: A New Answer to an Old Question.”

There is no official language that a witness is required to employ when invoking the privilege against self-incrimination. As one federal circuit court recently observed, “A witness’s answer could range from ‘I refuse to answer on the ground that my answer may tend to incriminate me’ to the more mundane ‘On the advice of counsel, I decline to answer.’” Evans v. City of Chicago, 513 F.3d 735, 740 n.4 (7th Cir. 2008).

One point the author makes is that the usual language implies the person is guilty but refuses to admit it. While that may not be admissible in court (Duane offers examples where it could get to be evidence), it casts a pall over the investigation.

Duane suggests one option is:

“On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which—according to the United States Supreme Court—protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.”

He suggests the expanded language is better than just saying “I decline to answer based on my Fifth Amendment right to silence.” I would add that should you invocation become “evidence” either deliberately or accidentally, the broader language would go over better with the Members (jury).

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

• Looking at the context of the word or term in the statute. This means considering the other words and phrases in the statute, as well as the overall purpose of the statute.
• Considering the legislative history of the statute. This includes looking at the bill drafts, committee reports, and other materials that were created during the legislative process.
• Considering relevant case law. This includes looking at how other courts have interpreted similar words and terms in other statutes.

The court will use these tools to interpret the ambiguous word or term in a way consistent with the statute’s overall purpose. Readers should also be aware of Scalia & Garner’s excellent book–Reading the Law, for deep dives into the rules and their complexities. As military defense counsel, we have a copy handy on our bookshelf.

It is important to note that the rules of statutory interpretation are complex and no single rule can be applied to all cases. Courts will often weigh different factors when interpreting a statute, including the plain meaning of the text, the context of the statute, the legislative history of the statute, and relevant case law.

A specific case-–United States v. Cabuhat

Over the last few years, Congress has made life difficult for military defense counsel, actually all lawyers practicting military justice, because of the numerous changes to the definition of what is or is not a crime.

Before a description of Cabuhat, what does (Google) Bard say The phrase “in the presence of” means in the same place as and close enough to be seen or heard. It can be used to describe a physical presence, such as when you are sitting in a room with someone.’

Cabuhat, assigned to the 86th Aircraft Maintenance Squadron, Ramstein, Germany, was sentenced to 30 years confinement in June 2021. He plead guilty to SA of a child, wrongfully photographing the child, and viewing and possessing CP.

Cabuhat was arrested in 2021 after an Air Force Office OSI investigation. Cabuhat SA a child on many times and had photographed the person during the abuse. He also had a large collection of CP.

Cabuhat pleaded guilty to all charges in June 2021. The military judge sentenced him to 30 years (to be served at the U.S. Disciplinary Barracks, Fort Leavenworth, KS), a dishonorable discharge, reduction to E-1, and mandatory SOR.

The central issue in the case is the meaning of “in the prescence of.” This can be important when the parties are separated and are communicating via Skype, WhatsApp, FaceTime or similar application.

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Likewise, given the victim’s subsequent testimony that the “price [she] had to pay” to attend the football game was submitting to sodomy [*13] by appellant, her statements were res gestae to the admissible Mil. R. Evid. 413 post-football game sexual assault evidence. See United States v. Metz, 34 M.J. 349, 351 (C.M.A 1992) (holding that res gestae evidence is admissible to place evidence in context); United States v. Gaddy, ARMY 21050227, 2017 CCA LEXIS 179, at *5 (Army Ct. Crim. App. 20 Mar. 2017) (summ. disp.) (“When conduct is inexorably intertwined with the alleged offense itself, it is not ‘other sexual behavior,’ but rather becomes part of the res gestae of the offense. That is, the testimony ‘was admissible as part of the same transaction as the assault.”) (citing United States v. Peel, 29 M.J. 235, 239 (C.A.A.F. 1989)).

United States v. Moore, No. ARMY 20140875, 2022 CCA LEXIS 140, at *12-13 (A. Ct. Crim. App. Mar. 7, 2022).

Res gestae evidence is vitally important in many trials. * Id. at 393. See also United States v. Peel, 29 M.J. 235, 239 (CMA 1989). It enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation: Indeed, a rule limiting the admissibility of testimony like that of [victim] would provide an inducement to prefer more charges in order to avoid lack of continuity in the evidence received. At a time when multiple charges for a single transaction are already common place as a means for meeting the exigencies of proof, we are not anxious to provide an added inducement for overcharging.

United States v. Metz, 34 M.J. 349, 351 (C.A.A.F. 1992).

He does, in his proposal, make the offense a specific intent one (to which an accused’s level of intoxication may be a defense), and he does acknowledge “there will likely be constitutional challenges to the proposed crime (e.g., void for vagueness, notice, or overbreadth).”

Two important changes will affect Mil. R. Evid. 106 (completeness) and 702 (expert testimony).

Daniel P. Elms, Rule of Evidence 702 Is Changing Faster Than You Think. ABA May 24, 2023, discusses the pending Rule 702 change. According to Elms, part of the rationale for change to 702 is,

“Then, in the spirit of a hundred online memes, the advisory committee told our federal courts “You’re Doing It Wrong.” The report states that in “a fair number of cases,” courts have admitted expert testimony “even though the proponent had not satisfied the Rule 702(b) and (d) requirements by a preponderance of evidence—essentially treating those questions as ones of weight rather than admissibility[.]” The advisory committee opined that such an approach was contrary to U.S. Supreme Court holdings and Rule 104(a).”

You can find the change forwarded in April to Congress here (along with a change to Fed. R. Evid. 106). Unlike the JSC, the FRAC has a robust “history” of the rule changes proposed and/or adopted. As best I can tell, the JSC hides its lack of transparency behind an exception to the Federal Advisory Committees Act or that the Act doesn’t apply to them. Under the Act

FAC committees can be created by the president, Congress or federal departments or agencies and must meet these basic requirements:

• Meetings must be open to the public and the public must be permitted to present their views
  • The JSC does have an annual public meeting, but only to receive comments or suggestions
• All meeting minutes and reports must be available for public access
  • Not done
• The public must be notified of meetings by advertisement in the Federal Register
  • Done at least once a year for proposed amendments to the MCM
• Committee membership must be balanced by points of view

What may be of interest to military defense counsel is Elms’s comment that,

“Unsurprisingly, litigants took a keen interest in the proposed amendment and the advisory committee’s comments. But perhaps less predictably, courts began to rely on those comments to inform their decisions on pending Rule 702 admissibility issues. In Sardis v. Overhead Door Corp., for example, the appellate court cited the advisory committee’s admonishments in its decision reversing the district court’s admission of expert testimony on shipping container design. And in Bishop v. Triumph Motorcycles America Ltd., the district court followed the path set by Sardis and did the same regarding expert testimony on motorcycle design and safety.”

Referring to the FRAC’s robust documentation of change can sometimes help litigating issues at trial. When Mil. R. Evid. 413/414 changed, some of us used the FRAC “package” in litigating admissibility—sometimes successfully.

Experts are the bread and butter of sexual assault cases for both the prosecution and the defense. DNA and toxicology are generally reliable because they are based on some real underlying hard science. The potential for error comes from the collection process, the chain of custody with possible contamination, and errors at the testing stage. Another potential for error with the hard science of DNA is that of transference and trace DNA. There are innocent explanations for why an accused’s DNA may be on an alleged victims clothing or person. The possibility of unreliable expert testimony–infused with bias–comes from the soft “sciences” like victimology, grooming, and other so called reliable studies. Exposing error or unreliability are challenges for the military defense lawyer. This challenge is especially hard because the military has a low standard for expertise.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

Shortly after Lattin comes Shields, another cellphone search case. The case presents dueling experts where, as you would expect, the Government expert was arguably given more “credibility” than the defense expert. When DCFL or government computer forensic “experts,” tell you they used the best and most current methods, you should not always believe that. Shields is a case where the DCFL used bad methods that ended up creating a fishing expedition. The court seemed to agree that the method wasn’t the best, but–it was good enough for government work.

In each case, the investigators were looking for texts, images, or data for a specific date or short time period. Forensic experts–good ones–will tell you that using proper methods readily available in the Atom or Cellebrite applications can make it relatively easy to create a narrow or focused search for items within a specified time period. Then, once the data is extracted for that time period, additional search criteria can narrow the data to that which is relevant to the reasons for the search. This, of course, is a little more time-consuming than a general search which, in light of Shields and Lattin, they might get away with.

These are matters–the law of the Fourth Amendment and issues of particularity and scope and cellphone or computer forensics that your military defense counsel needs to know about.

A jokester might suggest that the MCIO theme song might be ‘Scrolling Down the River on a Sunny Afternoon.’

If you do have leisure time on the river, you might take Digital Rummaging with you to read along the way.

Attorney Cave of Cave & Freeburg, LLP, is co-counsel in a petition for certiorari to be filed in Lattin v. United States.

Give us a call if you want to talk about representation by Cave & Freeburg, LLP as your military defense counsel.

In State v. Terrance Police, 2022 Conn. LEXIS 123 (May 10, 2022), the issue was whether “touch DNA” was good enough for probable cause to get an arrest warrant. Here is the important part of the decision saying it wasn’t.

[T]he DNA evidence used to describe the suspect was not a single source sample known to have come from the perpetrator. Rather, it was “touch DNA,” also known as “trace DNA,” from multiple sources that might or might not have come from the perpetrator—something the police simply had no way of knowing when they applied for the John Doe arrest warrant. Notably, the state has not identified a single case, and our research has failed to uncover one, in which mixed partial DNA profiles from touch DNA provided the description of a suspect in a John Doe arrest warrant. Touch DNA “is a term used to describe DNA that is left behind just by touching an object …. Notwithstanding its name, however, touch DNA does not necessarily indicate a person’s direct contact with the object. Rather, according to [experts], abandoned skin cells, which make up touch DNA, can be left behind through primary transfer, secondary transfer, or aerosolization.” (Internal quotation marks omitted.) State v. Dawson, 340 Conn. 136, 153, 263 A.3d 779 (2021). Even when a person touches an object, “DNA is not always detectable, meaning that it is possible to have someone touch an object but not leave behind detectable DNA because … some people leave more of their skin cells behind than others, i.e., some people are better ‘shedders’ of their DNA than others. There are also other factors that affect the amount of DNA left on an object, such as the length of contact, the roughness or smoothness of the surface, the type of contact, the existence or nonexistence of fluids, such as sweat, and degradation on the object.” Id., 154. As a result, touch DNA “poses potential problems that are not present, or are less often present, with DNA obtained from evidence consisting of bodily fluids ….” 7 C. Fishman & A. McKenna, Jones on Evidence (7th Ed. 2019) § 60:9, p. 785. For example, “[t]ouch DNA will often be available in much smaller quantities than DNA extracted from blood, semen, or hair”; id.; and “the presence of touch DNA may often be far less probative of a defendant’s guilt than DNA derived from bodily fluids.” Id., p. 787. Indeed, “trace samples lack the clarity of the more straightforward DNA evidence that can lead to a clear match to a specific individual. An object is found at or near a crime scene. A technician swabs the object to test for that DNA. These trace samples are usually quite small, there is often more than one person’s DNA, and the evidence is of a much poorer quality.” B. Stiffelman, supra, 24 Berkeley J. Crim. L. 115. “When dealing with such small amounts of DNA, there is much greater ambiguity as to how the DNA ended up on the object. For example, the DNA could have been left by someone who touched the object, or even by someone who touched the person who then touched the object. … In short, small amounts of DNA can be easily transferred and [travel]. Because of this, finding someone’s DNA on an object is less significant to a determination of guilt or innocence of a suspect.” (Footnote omitted.) Id., 115-16.

The question of “touch DNA” is important for your sexual assault case where the prosecutor is arguing you touched the alleged victim in an “improper” part of the body. The accused’s DNA could have gotten on her hand and then she transferred it to herself.

“Touch” or “transfer” or “trace” DNA is an unreliable method of proving the offense at court-martial. Military defense counsel should challenge the admissibility and reliability of such evidence.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

When taking up credibility, he further writes that,

“At least in the courtroom, we act hastily when we conclude that the decisions of prosecutors and jurors can be based on presumptively believing sexual assault complainants. On the contrary, the presumption of innocence and the government’s burden of proof beyond a reasonable doubt in all criminal cases remind us that jurors have an obligation to weigh the credibility of accusers carefully, and indeed that a defendant must be given leeway to cross-examine alleged victims to establish that they may be mistaken in their memory of historical events, that they might have a motive to fabricate claims, or that their perception may have been clouded by alcohol or narcotics. All members of society must be conditioned to listen with care and compassion when complainants bring forth accusations of sexual assault, so that we do not apply subconscious stereotypes or biases to reflexively discredit them. But as the “Me Too” movement grows, it is also essential that bedrock protections for the accused are not eroded in a way that predetermines a defendant’s guilt.”

The writer then goes on to address the issue of rape-shield doctrines being “stretched beyond their original purpose.” Part of his focus is on something military defense counsel see often at courts-martial–actual or suspected prior false allegations. He notes the confusing state of the law on this particular issue.

“The thesis of this article is that interpreting rape shield rules to require the exclusion of prior false allegations of rape jeopardizes the ascertainment of truth. Yet the confusing state of the law at the intersection of prior false allegation evidence and rape shield rules leaves the admissibility of this particular type of evidence highly contested and uncertain.”

Cassidy proposes an amendment to Rule 608(b) for dealing with allegations of prior false accusations. The ‘proposed amendment to state and federal rape shield rules would both narrow and broaden the traditional mechanism for impeachment by character evidence under Rule 608(b) for sexual assault complainants.” The rule would require that proposed evidence be, effectively, considered Rule 412 evidence, and as military defense lawyers now do, file a motion for a closed hearing. He argues, as your military defense lawyers often do, that the government should not be able to weaponize rape shield rules to prohibit inquiry into prior false accusations that are primarily indicative of dishonesty” because that is a disingenuous application of the rule.”

The article, therefore, presents some useful ideas and arguments for admission of evidence showing a persons potential to lie.

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Remember that before dismissing the panel at the end of the trial the military judge gives them instruction. They reminded of the secrecy of their deliberations and that they are not to discuss them with anyone unless a military judge orders that. There are several exceptions to the ban on questioning members about their deliberations. There are several exceptions to the Rule.

A member may testify about whether:

(A) extraneous prejudicial information was improperly brought to the members’ attention. United States v. Schloff, is an example of this exception (and exception (B)). During deliberations, the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial. (B) unlawful command influence or any other outside influence was improperly brought to bear on any member. See Schloff. (C) a mistake was made in entering the finding or sentence on the finding or sentence forms. We see this exception in use from time to time when the military judge believes the findings are ambiguous.

In Pena-Rodriquez v. Colorado, ___ U.S. ___, 2016 U.S. LEXIS 2424 (2016) , the Supreme Court basically held that “Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” In passing judgment the court noted that 16 jurisdictions allowed the no-impeachment rule to be pierced when there was an issue based on racial stereotyping. The court did caution however about creating exceptions to the no-impeachment rule. On the race issue,

The unmistakable principle underlying these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U. S. 545, 555 (1979). The jury is to be “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’ ” McCleskey v. Kemp, 481 U. S. 279, 310 (1987) (quoting Strauder, supra, at 309). Permitting racial prejudice in the jury system damages “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Powers v. Ohio, 499 U. S. 400, 411 (1991); cf. Aldridge v. United States, 283 U. S. 308, 315 (1931); Buck v. Davis, ante, at 22.

So as a military defense lawyer with a case at court-martial under the UCMJ, what can you do if the issue does not fit neatly into any of the exceptions and is not a racial stereotyping issue? Perhaps exception (A) might be the hole in the needle to thread. Yet, we have Missouri v. Gilbert, which says a jury verdict cannot be impeached when there is evidence the jurors held the accused’s silence against him.

The Gilbert court emphasized the limited exceptions in their state law making it only possible to have the testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations. The court observed that Gilbert was trying to create a new Missouri court-made exception for “improper consideration of a defendant’s failure to testify in reaching its verdict.” The Missouri court said it would not create this new exception.

In finding no error the court referenced Pena-Rodriguez v. Colorado, where the U.S. Supreme Court “warned that creating further exceptions to the general rule could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear … that the jury system would survive such efforts to perfect it.” Id. at 868 (internal citations and quotations omitted).

We do have some cases to review, for example,

• United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision.
• United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member’s alleged influence.
• United States v. Schloff, in which the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial.

One final note, in Iowa v. Spates, the court followed Pena-Rodriguez. In doing so the court said that appellate review had to apply an objective not subjective standard to any evidence.

[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.

It is challenging for a military defense lawyer to identify problems inside the jury box and even harder to make an appellate issue should there be some evidence of panel member misconduct. One way for the government to avoid the issue is to take special care during an argument not to raise the specter of a decision based on anything but the facts and the law. Seue, e.g., United States v. Garcia. Here the prosecution bilged the case for an accused who was found not guilty on retrial.

“This case involves numerous instances of improper argument during findings. Some were objected to and some were not. We discuss each instance separately and collectively assess whether they resulted in prejudice to appellant.”

Obviously, objections are more necessary now than before. The appellate courts are becoming more strict on waiver of objections and more parsimonious with the plain error analysis. Courts-martial under the UCMJ are supposed to be fairly decided on the evidence and the law and not on Service policy or similar doctrine such as zero-tolerance.

If your client knows of prior acts of violence then he may have a better argument that it was necessary to use, perhaps, more force than if the client knew the victim to be a peaceful person.

Mil. R. Evid. 405(a) allows the opinion of a victim’s character trait for violence. 405(b) would appear to support specific acts regarding that trait of violence.

Prof. Colin Miller observes that Fed. R. Evid. 405(a) has been interpreted to allow evidence of prior bad acts by the victim, not to prove the victim’s bad character, but to prove the defendant’s reasonable apprehension of the victim. According to Miller, the feds call this “communicated character.” He discusses this in the context of In its recent opinion in Beck v. State, 2020 WL 7133063 (Ga. 2020), the Supreme Court of Georgia dealt with the question of whether the Peach State should adopt this communicated character exception. Georgia has a similar 405(a) rule of evidence.

In Strong v. State, 845 S.E.2d 653 (Ga. 2020) at n. 22, the court notes some of the prior cases addressing the issue.

See, e.g., White v. State , 307 Ga. 882, 885-86, 838 S.E.2d 828 (2020) ; Williams v. State, 301 Ga. 712, 715 n.3, 804 S.E.2d 31 (2017) ; Mohamud , 297 Ga. at 536 n.2, 773 S.E.2d 755. Federal courts have upheld the admission of such evidence. See, e.g., United States v. Bordeaux , 570 F.3d 1041, 1051 (8th Cir. 2009) (“[E]vidence of victim’s prior bad acts ‘is only admissible to the extent a defendant establishes knowledge of such prior violent conduct at the time of the conduct underlying the offense charged[.]’ ” (citations omitted)); United States v. Saenz , 179 F.3d 686, 689 (9th Cir. 1999) (holding that “a defendant claiming self defense may show his own state of mind by testifying that he knew of the victim’s prior acts of violence” and by presenting “extrinsic corroborating evidence of the victim’s [known] acts of violence”). Additionally, because these two threats were against Appellant, they may have been admissible to show Maurice and Appellant’s relationship. Cf. Flowers v. State, 307 Ga. 618, 621, 837 S.E.2d 824 (2020) (holding that evidence of a defendant’s prior acts toward a victim may be admissible where the nature of the relationship between the defendant and the victim sheds light on the defendant’s motive in committing the charged offense).

The Georgia court observed that a victim’s violent character is pertinent to, but not an essential element of self-defense, thus testimony is limited to opinion and reputation.

Beck also argues that the trial court erred by denying his request to admit specific instances of violent conduct by Liverpool, evidence about Liverpool’s reputation, and evidence that Liverpool had violence-themed tattoos.

“[a]lthough this Court has not yet decided whether, under the current Evidence Code, a victim’s specific acts of violence of which the defendant had personal knowledge may be admissible to show the defendant’s state of mind with respect to a claim of self-defense,” something that federal courts have allowed,…this case does not call on us to decide that issue.

The court determined there was sufficient other evidence of the alleged victim’s violent nature so any error was harmless.

Now, cross-examination may be a little different when a witness testifies about a victim’s character.

LII observes that,

According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Annot., 47 A.L.R.2d 1258. The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting. Accordingly, the opinion witness would be asked whether he knew, as well as whether he had heard. The fact is, of course, that these distinctions are of slight if any practical significance, and the second sentence of subdivision (a) eliminates them as a factor in formulating questions. This recognition of the propriety of inquiring into specific instances of conduct does not circumscribe inquiry otherwise into the bases of opinion and reputation testimony.

Federal Rule of Evidence 803(4) provides an exception the rule against hearsay for

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

So, if Pam feels sick and goes to a doctor to be diagnosed and treated, clearly her statements would be admissible under Rule 803(4). And the same would apply to statements made to the doctor by Pam’s family and friends so she can be diagnosed/treated. But what if Pam believes that she has been injured or made sick based on the wrongdoing of someone and consults with a doctor solely so that the doctor can testify at her trial. Are Pam’s statements admissible

The Advisory Committee’s Note to Rule 803(4) states that

Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation.

Moreover, as the Supreme Court of Georgia noted in Smith v. State, 2020 WL 3581185 (Ga. 2020),

the federal appellate courts to have addressed the specific issue in this case have concluded that statements made for medical purposes to experts hired in anticipation of litigation generally are admissible under Rule 803 (4).

The Supreme Court of Georgia found that it didn’t have to resolve this issue under its state version of Federal Rule of Evidence 803(4), but it noted some hesitancy about adopting this federal precedent. According to the court, “we view the aforementioned cases unpersuasive to the extent that they suggest that the question of admissibility under Rule 803 (4) is anything other than a case-specific, fact-intensive inquiry.”

In other words, it sounds like the Supreme Court of Georgia may allow for the admission of “statements to a physician consulted only for the purpose of enabling him to testify,” but only under certain circumstances.

Batts & Sanger on Collecting Forensic Evidence in the Emergency Department

By CrimProf BlogEditor

Share Jayne J. Batts and Robert M. Sanger (affiliation not provided to SSRN and Santa Barbara College of Law) have posted Collecting Forensic Evidence in the Emergency Department: A Guide for Lawyers, Investigators, and Experts (American Journal of Trial Advocacy, Vol. 42, No. 2, 2019) on SSRN. Here is the abstract: Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that makes its way into the emergency department (ED) of a local hospital or a regional trauma center. This evidence may be found on the person of a patient who was a victim, a witness, or an accused, and it is often brought into the trauma room by the paramedics or others who arrive with the patient. In fact, the evidence also may be the traumatic injuries sustained by a victim.

The main focus of emergency department personnel is to assess and treat their patient’s injuries, which may require the performance of lifesaving procedures in the emergency department or in the operating room. The preservation and collection of forensic evidence, as well as the documentation of the patient’s wounds, is an important but secondary concern. Furthermore, training in the preservation and documentation of forensic evidence as well as the documentation of the patient’s wounds is almost non-existent in the curriculum of nursing programs, medical schools, and residency programs.

Additionally, even though the preservation and collection of forensic evidence is mandated by The Joint Commission,1 apart from protocols for the evaluation of sexual assault victims, most healthcare facilities do not have any formal protocols in place for the collection of evidence in other types of forensic cases. Nevertheless, the evidence encountered in the emergency department can be forensically significant in the legal proceedings that ensue both in civil and criminal cases. What has been correctly preserved may be critical to legal issues in a case. In addition, knowing what evidence may have been altered, destroyed, or discarded entirely at the scene or in the emergency department may also be critical to lawyers, investigators, and experts in subsequent investigations, as well as in civil and criminal litigation.

There are practical and effective evidence collection protocols and techniques that can be used with regard to potential evidence in the emergency department without sacrificing the primary medical goals of providing expert care to the victim of a violent crime. Implementation of evidence collection protocols by pre-hospital providers; emergency physicians; trauma and orthopedic surgeons, as well as the nursing staff in the emergency department; operating rooms; and Surgical Trauma Intensive Care Units, can and will enhance the preservation and documentation of evidence that might otherwise be lost or contaminated. The protocols also improve the reliability of the chain of custody of items that may be of evidentiary value.

By CrimProf BlogEditor

Share Edward K. Cheng and Cara Mannion (Vanderbilt Law School and affiliation not provided to SSRN) have posted Unravelling Williams v. Illinois (NYU Law Review Online) on SSRN. Here is the abstract: Forensics are a staple of modern criminal trials, yet what restrictions the Confrontation Clause places on forensic reports is entirely unclear. The Supreme Court’s last decision on the issue, Williams v. Illinois, sowed widespread confusion among lower courts and commentators, and just this past Term, Justices Gorsuch and Kagan dissented to the denial of certiorari in Stuart v. Alabama, a case that would have revisited (and hopefully clarified) Williams. Our Essay attempts to dispel the confusion in Williams v. Illinois. We argue that Williams involved three difficult and intertwined evidentiary questions: i) when experts may use inadmissible evidence as the basis of their opinions under Rule 703; ii) whether Rule 703 itself is consistent with the Confrontation Clause; and iii) whether reports that arise out of rigorous scientific processes implicate the Confrontation Clause at all. Along the way, we show that the answers to these questions help predict the future of the Confrontation Clause and offer a potential tool for improving forensic science.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Table 1: Causal Factors (≥ 10) Causal Factor

Confirmation bias 37 Tunnel vision 24 High-profile crime/media attention 23 Management/supervision issues 22 Careless/incompetent investigation 20 Improper interrogations 20 Rush to judgment 19 Flawed forensics 15 Problematic witness/informant 14 Evidence analysis/logic failure 12 Interagency conflict/DA interference 10

Welcome to military sexual assault investigations and prosecutions.

confirmation bias, in particular, held a pivotal position in the causal structure of wrongful convictions. Faulty assumptions, probability errors, and groupthink often played supporting roles. Cognitive bias affects not just investigators, but also prosecutors, defense lawyers, scientists, military leaders, politicians-indeed, everyone.

“Believe the victim” and victim-centric interviews and investigations require the application of cognitive/ confirmation bias–IMHO deliberately. A presumption of guilt follows which reinforces CB.

Confirmation bias is a type of selective thinking. Once a hypothesis has been formed, our inclination is to confirm rather than refute it. We tend to look for supporting information, interpret ambiguous information as consistent with our beliefs, and minimize any inconsistent evidence. Types of confirmation bias include: (1) the biased search for evidence; (2) the biased interpretation of information; and (3) a biased memory (selective recall). Confirmation bias can cause a detective to interpret information in a biased manner-evidence that supports the investigative theory is taken at face value, while contradicting evidence is skeptically scrutinized. Other manifestations of confirmation bias include the failure to search for evidence that might prove a suspect’s alibi, not utilizing such evidence if found, and refusing to consider alternative hypotheses.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

United States v. Kangich, 78 M.J. 304 (C.A.A.F. 2019).

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of the granted issue, __M.J. __ (C.A.A.F. 2019), the opinion of the United States Army Court of Criminal Appeals, United States v. Davis, No. 20160069 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that the military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

The ACCA unpublished opinion of 16 August 2018, ARMY No. 20160069, in “Nicholas E. Davis” is here.

I conclude the instructional issue must have been in the Grostefon?

We address two assignments of error, with multiple subparts, one of which merits relief. Appellant personally raised seven matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which is also an assigned error. The remaining Grostefon matters, after due consideration, do not warrant discussion or relief.

United States v. Davis, No. ARMY 20160069, 2018 CCA LEXIS 417, at *2 (A. Ct. Crim. App. Aug. 16, 2018).

CAAF granted on the following issue.

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT FOR THE OFFENSE OF INDECENT VISUAL RECORDING AND THE DEFENSE OF MISTAKE OF FACT AS TO CONSENT.

United States v. Davis, 2019 CAAF LEXIS 223 (C.A.A.F. 2019).

Here’s the link to United States v. Macdonald.

Appellant was convicted of sexual assault by bodily harm on a nonconsent theory. The military judge in his case gave no specific mens rea instruction beyond the standard mistake of fact defense, which provides a defense if the accused had an honest and reasonable (nonnegligent) belief that consent was obtained. Appellant, however, contends that Elonis v. United States, 135 S. Ct. 2001 (2015), required the military judge to instruct the members that a mens rea of at least recklessness with regard to consent was necessary for conviction. We granted review to determine the required mens rea for sexual assault by bodily harm, and conclude that Congress clearly implied a general intent mens rea for that offense.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

WASHINGTON / May 23, 2019 – Over 100 law professors, practicing attorneys, scholars, and concerned citizens have endorsed a petition calling on the Department of Justice to promptly cease its support for guilt-presuming investigations. Commonly known as “victim-centered,” such methods vitiate notions of fairness and investigative impartiality and contribute to the problem of wrongful convictions.

“Victim-centered” methods such as Start By Believing advise investigators to start with a presumption of guilt, seek to “corroborate the victim’s account,” and write their reports using the “language of non-consensual sex.” (1) Such approaches violate ethical codes that require investigators to “present such evidence impartially and without malice.” (2)

Another “victim-centered” method is known as “trauma-informed,” which posits the cognitive effects on persons experiencing traumatic events. But experts have dismissed such notions as “psychiatric folklore,” lacking scientific verification, and even as “junk science.” (3)

Victim-centered methods have been discredited by a number of groups. The Air Force Office of Special Investigations found such methods to be “inappropriate and irresponsible.” (4) In 2015 the Arizona Governor’s Commission to Prevent Violence Against Women issued a letter saying Start by Believing “creates the possibility of real or perceived confirmation bias” and “strongly cautioned” state law enforcement agencies from using Start By Believing. (5)

The petition demands that the Department of Justice “promptly suspend its support for programs that call on detectives and investigators to reject their most basic of principles of fairness and that threaten to unravel the very fabric of our nation’s justice system.”

Journalist Emily Yoffe has termed victim-centered theories “junk science” because of their lack of scientific support and the circular logic they utilize. (6) Additional information is available in the CPI White Paper, ‘Believe the Victim:’ The Transformation of Justice. (7)

Links available here:

http://www.prosecutorintegrity.org/pr/over-100-law-professors-others-call-on-doj-to-stop-junk-science-victim-centered-methods/

This means, as a rule, you must prove your innocence.