(rentas-nmcca-providence-ineffective-assistance-military-defense-lawyer)

United States v. Rentas: When “Trash” Almost Sank a Plea—And the IAC Claim That Followed

On 30 April 2026, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued a per curiam opinion affirming the convictions and sentence in United States v. Rentas, No. 202500082. Lance Corporal Joshua J. Rentas had pleaded guilty at a general court-martial at Camp Foster, Okinawa, to four specifications of possessing child pornography and one specification of distributing child pornography under Article 134, UCMJ. The military judge sentenced him to a dishonorable discharge, 36 months of confinement, total forfeitures, and reduction to E-1. On appeal, Rentas raised two Grostefon issues: improvident pleas based on alleged pressure from counsel during a mid-providence recess, and ineffective assistance of counsel for failing to retain a digital forensic expert. NMCCA rejected both. The opinion offers a textbook walk-through of how providence inquiries work, what an “inconsistency” actually means, and how Strickland prejudice plays out in the guilty-plea context. For service members and any military defense lawyer working a pretrial agreement, it is worth a careful read.

The Facts the Court Cared About

Rentas confessed to NCIS, consented to the search and seizure of his electronic devices, and submitted a “letter of apology” with his proposed plea agreement. Pursuant to that agreement, he pleaded guilty to possessing child pornography on two laptops, an iPhone, and an external hard drive, and to one distribution specification.

During the providence inquiry on Specification 2 (the external hard drive), Rentas told the military judge he had put the hard drive in “the trash can.” Trial counsel called for a recess. Eight minutes later the inquiry resumed. Rentas explained “trash” actually meant a desk drawer “full of a bunch of trash,” that he had transferred the data—including some of the child pornography files—from the hard drive onto a different laptop, and that he planned to eventually get rid of the hard drive. The military judge accepted the pleas and imposed the agreed-upon sentence.

After trial, Rentas filed a declaration alleging that during the recess his trial defense counsel and the trial counsel both told him to “stick to the script” or his plea deal would collapse and he would face “over 50 years of confinement.” NMCCA initially denied his motion to attach the declaration, then denied reconsideration, then on its own reconsidered again and granted the motion. Even with the declaration in the record, the appeal failed.

Issue One: The Providence Inquiry and the “Trash” Problem

The standard of review for accepting a guilty plea is abuse of discretion, with questions of law reviewed de novo. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). Under Article 45, UCMJ, and R.C.M. 910(h)(2), the military judge must reject a plea—or resolve the inconsistency—if the accused sets up matter inconsistent with the plea. The substantial basis test asks whether anything in the record raises a substantial question about the plea.

NMCCA held nothing in the record raised that question for Specification 2. The “trash” comment was not an inconsistency. Rentas explained the desk-drawer-full-of-trash meaning, admitted he transferred the files including the child pornography to another device, and never claimed he was not guilty or that he obtained the files inadvertently. The stipulation of fact had him admitting “exclusive dominion and control” of the hard drive. That is the opposite of an inconsistency. The court distinguished United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2012), and United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006): a military judge must dig deeper when the accused raises a possible defense, but mere mitigation or rationalization is not the same thing as a defense. See United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007).

The recess-pressure allegation got even shorter treatment. Rentas did not argue coercion. The court flatly stated that “it is reasonable for a defense counsel to inform a client of possible and foreseeable consequences if a military judge were to reject a guilty plea as improvident.” Telling a client what the maximum punishment looks like if the deal collapses is not improper pressure—it is candid lawyering. The court also pointed out that Rentas did not challenge providence as to Specifications 1, 3, 4, or 5, but asked that all five findings and the sentence be set aside. NMCCA was not biting.

For background on how the Care inquiry functions and how plea problems develop in the record, see our prior post: Guilty pleas under the UCMJ.

Issue Two: Ineffective Assistance and the Digital Forensic Expert

Rentas’s second claim was that trial defense counsel was ineffective for failing to retain a digital forensic expert who could have explained “the process by which files can be transferred from one device to another without the knowledge or intent of the user.” The court reviewed the claim de novo under Strickland v. Washington, 466 U.S. 668 (1984), and the guilty-plea-specific prejudice standard from Lee v. United States, 582 U.S. 357 (2017): whether there is a reasonable probability that, but for counsel’s errors, the accused would not have pleaded guilty and would have insisted on going to trial.

The opinion did two things that matter for any future Strickland claim in the plea context. First, it presumed reasonable tactical judgment. Rentas had already confessed to NCIS and consented to the searches that produced the devices. Against that record, declining to retain a digital forensic expert was a reasonable strategic call—and there is “significant” evidence to overcome before that presumption breaks. Second, it applied Suarez and Furth. A bare post-trial assertion that the accused would not have pleaded guilty is not enough. The court must look at contemporaneous evidence—the confession, the consent search, the apology letter, the stipulation of fact, the agreed sentence cap—because every appellant has an incentive to retroactively reframe the deal. United States v. Suarez, 86 M.J. 65 (C.A.A.F. 2025); United States v. Furth, 81 M.J. 114 (C.A.A.F. 2021).

The court added a sharp factual finding tucked in a footnote: it did not credit Rentas’s claim that he was unaware files would download onto the hard drive. With that credibility call, the prejudice analysis was over.

What This Opinion Teaches

Several practical points emerge. A providence inquiry is not a verbatim test. The military judge must resolve actual inconsistencies, not chase every mitigating word. Rationalization, minimization, and clarification do not invalidate a plea unless they negate an element or set up a defense. See our discussion of this principle: Providence shines down or upon.

Recess conversations between an accused and defense counsel about the consequences of an improvident plea are normal and lawful. Allegations of “pressure” must show coercion that overrides voluntariness, not just candor about exposure if the deal collapses. A post-trial declaration alone, even if attached to the record, rarely moves the needle when the contemporaneous record—confession, consent, stipulation, apology letter, plea agreement—uniformly supports the plea.

Ineffective-assistance claims in the plea context turn on whether the accused would have rejected the deal and gone to trial. That is an objective inquiry, anchored to the actual evidence of guilt, not to the appellate brief’s hindsight. When the Government has a confession, consensual search results, and a stipulation, the Lee prejudice showing is steep.

Digital forensic experts can be powerful tools in CSAM and computer-evidence cases. See United States v. Douangdara and our prior post: How a guilty plea can go wrong. But timing matters. The right place to litigate digital forensics is before the guilty plea, not after. Once an accused confesses, consents to searches, signs a stipulation, and pleads guilty, the appellate burden to undo the plea on a forensics theory becomes very heavy.

The Strategic Lesson Before You Sign a Plea Agreement

If digital forensics could exonerate or mitigate—if there is a real argument about automatic syncing, cloud backups, malware downloads, shared devices, or unintended file transfers—those arguments belong in pretrial motions, suppression litigation, expert assistance requests under R.C.M. 703(d), and pretrial negotiations. They lose nearly all their power once the providence inquiry is over and the plea is accepted. Rentas is the latest reminder that the leverage in a CSAM case is built before arraignment, not after sentencing.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle Article 134 child pornography cases, NCIS, OSI, CID, and CGIS investigations, and the full range of pretrial and appellate work in courts-martial across every service. We litigate motions to suppress under the Fourth and Fifth Amendments, secure expert assistance for digital forensics under R.C.M. 703(d), evaluate plea agreements with realistic exposure analysis, and—when the government’s case has real weaknesses—we contest at trial rather than settle. On appeal, we know how NMCCA, AFCCA, ACCA, the Coast Guard CCA, and CAAF handle providence challenges, Strickland claims under Suarez, Furth, and Lee, and post-trial declarations. If you face a child pornography investigation or charge under Article 134, UCMJ, or you have already been convicted and want a candid appellate assessment, contact Cave & Freeburg, LLP, today. Call (703) 298-9562 or (917) 701-8961 to speak confidentially with an experienced military defense counsel.

(delta-8-thc-article-112a-byrd-military-defense-lawyer)

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.

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.

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.

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.

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.

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.

Randy Papetti, The Forensic Unreliability of the Shaken Baby Syndrome: The Book.

Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome,now shipping from Academic Forensic Pathology International (coupon for $50 off).

United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.

Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”

A defense expert consultant confirmed this disclosure. So the defense moved to compel a physical extraction of the CW’s “Samsung Galaxy S-IV” cell phone. “The defense asserted that the report derived from the logical extraction did not include deleted data, hidden data, or mobile applications data.”

The NCIS expert explained that he could not perform a physical extraction because a “Galaxy S-IV” was not a “rooted” phone. The evidence provided in support of the defense expert conclusion that a physical extraction could be performed was a “screenshot,” of an apparently earlier version of the phone, a “Galaxy SIII, Alfa,” and the screenshot indicated it was a “rooted” phone. Based upon this limited and contradictory evidence, we agree with the military judge that the appellant failed to sustain his burden of persuasion. Furthermore, there was no evidence submitted at trial or to date that in February 2015, when NCIS had control of PI’s cell phone, the technology existed to conduct a physical extraction of a Galaxy S-IV cell phone.

Cellebrite can now unlock iPhone 6 and 6+, also extract data from array of popular apps, according to cyberscoop.com.

What Happens When You Press that Button? — according to Cellbrite.

Here’s another story. http://www.miaminewtimes.com/news/hundreds-of-south-florida-cases-in-doubt-over-dna-testing-problems-9383687

Two linked issues are driving the ongoing saga. The first came to light last summer, when an investigation found problems with how the Broward Sheriff’s Office crime laboratory was interpreting complex samples, which contain DNA from more than one person. With its accreditation threatened, the lab last July ceased reporting those complex samples and instead began sending them to outside experts. BSO lab officials downplay concerns, insisting their methods have repeatedly been validated and their analyses and protocols are sound. The lab’s methods would “never produce a false identification,” says Col. Steve Kinsey of the Broward Sheriff’s Office.

Keep in mind that USACIL has not been immune to problems with their examiners, although it has been some time since the biggest scandal.

[W]hen the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published

people thought we might see a true effort to address “junk science being used to convict innocent people.”

The report was scathing except in regard to DNA. “The report did spawn the creation of the Federal Commission on Forensic Science, which has proven, over the last three years, to be a totally toothless tiger, accomplishing essentially nothing.”

The President’s Council of Advisors on Science and Technology has issued an additional report that is highly condemning of current forensic practices.

Do not expect much change–the FBI and DoJ will continue to use junk science, and you can sure expect the military to do so. See Jordan Smith, FBI AND DOJ VOW TO CONTINUE USING JUNK SCIENCE REJECTED BY WHITE HOUSE REPORT. The Intercept, 23 September 2016.

MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS, by Major David C. Lai. This is relevant to me because I have an appellate case where there are issues with the client’s current competency and there were at trial.

ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? By Major Matthew E. Dyson. This is highly relevant in regard to the ongoing sexual assault issues and considerations of by-stander behavior.

V. Conclusion The momentum of the current Department of Defense push to prevent sexual assault should not be a reason to hastily promulgate criminal sanctions for not intervening or reporting sexual assault. A hyperreactionary response to the current political climate would fail to take into account practical considerations undermining the efficacy of such an approach. It is probably lawful to craft an order requiring the reporting of specific crimes witnessed by all service members regardless of rank; however, such an approach is short sighted. Moreover, a duty applicable to all soldiers to physically intervene to stop sexual assault or to stop a soldier from driving drunk is likely unlawful. Variations of these types of orders may be lawful, but they are, without question, not advisable, and frankly foolish. Converting all of the Army into law enforcement officials tasked with physical intervention to stop crimes would be trailblazing of historic proportions not seen in any other segment of society or the law. No other jurisdiction in America requires physical intervention as the only method to comply with duty to rescue laws. Even in the few jurisdictions that have enacted duty to rescue statutes, witnesses may comply by notifying law enforcement for assistance.265 Such a radical change must be avoided at all costs. Instead, the Army needs to focus its sexual assault prevention plan on fostering an environment of dignity and respect of all of its teammates. The Army requires a cultural shift and major changes in attitudes, not a change in the law. The center of gravity should be dignity and respect for all, with an emphasis on building trust. Appeasing political pressure should not be a reason to dramatically alter the law.

Working with expert witnesses can be difficult for even the most seasoned attorneys and trial consultants. Oftentimes, egos and expertise can get in the way of an expert’s ability to deliver persuasive testimony, requiring attorneys and trial consultants to be creative when developing solutions that fit both the problem and the expert witness. As trial consultants, we have gained valuable information on how to prepare expert witnesses for trial from the jury research we have conducted. For instance, we know that the best experts are capable of conveying they are honest, respectful people who have a firm grasp on the issues they are asked to testify about. When experts convey their insights in a polite, yet knowledgeable, manner they can be an invaluable asset at trial.

Tips for Preparing the Expert Witness, by Alyssa Tedder-King, M.S. from Litigation Insights and Katie Czyz, M.A. from Litigation Insights – April 25, 2016

Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice. Boston Review, November 16, 2015.

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

. . .

In more than 95 percent of cases, analysts overstated their conclusions in a way that favored prosecutors. The false testimony occurred in hundreds of trials, including thirty-two death penalty cases. Not only that, but the FBI also acknowledged it had “trained hundreds of state hair examiners in annual two-week training courses,” implying that countless state convictions had also been procured using consistently defective techniques. But questions of forensic science’s reliability go well beyond hair analysis, and the FBI’s blunders aren’t the only reason to wonder how often fantasy passes for science in courtrooms. Recent years have seen a wave of scandal, particularly in drug testing laboratories. In 2013 a Massachusetts drug lab technician pled guilty to falsifying tests affecting up to 40,000 convictions. Before that, at least nine other states had produced lab scandals. The crime lab in Detroit was so riddled with malpractice that in 2008 the city shut it down. During a 2014 trial in Delaware, a state trooper on the witness stand opened an evidence envelope from the drug lab supposedly containing sixty-four blue OxyContin pills, only to find thirteen pink blood-pressure pills. That embarrassing mishap led to a full investigation of the lab, which found evidence completely unsecured and subject to frequent tampering.

“[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.

There are many problems with this opinion.

He notes that:

The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.

He notes then the general purpose behind evidence such as DNA results.

The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches. The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401? To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place. Indeed, as the FBI itself states:

more

Nuclear DNA (nDNA) is the most discriminating and is typically analyzed in evidence containing body fluids, skin cells, bones, and hairs that have tissue at their root ends. The power of nDNA testing lies in the ability to identify an individual as being the source of the DNA obtained from an evidence item, or by excluding an individual as a contributor to the DNA evidence. LINK

He then notes the age-old question of how much “information” do you need to declare a “match.” This is a similar question asked when deciding whether or not fingerprints “match.” How many points of concordance are needed for a scientifically reliable match.

The FBI also set a minimum standard for DNA “matches” i.e., ” For Forensic STR DNA analysis, the DNA profile consists of one or two alleles at the 13 CODIS Core Loci.” LINK. Here, they only had enough DNA to be examined at 4 loci – less than 1/3 of the minimum FBI standard – and again, it’s an attempt to make this “relevant” when it is not. If only one allele at any of the other standard 9 loci is different, then he IS excluded but that data is not available due to the lack of sample size. But, like other FBI forensic screw-ups, e.g., hair comparison analysis, bullet-lead comparison analysis, etc., the FBI has had another “Whoops, we goofed” moment recently with DNA comparison statistics – one of the major issues here. That data is available HERE.

So, he asks, is the opinion offered here based on reliable science or knowledge. It appears it doesn’t satisfy the requirement of general acceptance.

Strangely, the purported “alleles present statistic” used by the KC Lab people, does not appear to be scientifically recognized by anyone except the 2 people testifying for the government. If you “Google” “alleles present statistic” the only hit that shows up is a link to the opinion in this case. But, the decision here not only does not describe whatever this is, or how it was applied in this case.

Next he gets to a common issue we see in military sexual assault cases—mixed samples, hers and his or them.

DNA “mixture” cases are equally as problematic – something that the DNA testing here could neither confirm nor refute. LINK. Considering the miniscule sample size and thus, inability to examine the 13 CODIS loqi, secondary (or even tertiary) transfer cannot be ruled out, i.e., “cannot be excluded.” For example, the Accused could have been sitting on a couch, with his hands on it depositing his epithelial cells (containing DNA) on the couch. Then if the complainant’s underwear were placed on that spot on the couch, those cells could easily transfer to the underwear, as Zach appropriately notes above. Indeed, one can hypothesize that MAJ H went to the bathroom to urinate and like a good guest, lifted up the toilet seat, did his thing, and then put the seat down again depositing his epithelial cells on the seat. There after, if the complainant then sat on that same toilet seat, a reasonable and logical transfer from the seat to her butt to her underwear is quite feasible. Lastly, ACCA’s MRE 403 analysis [p. 10-11], leaves much to be desired as it simply ignores the purpose behind 403’s balancing requirement. E.g., ACCA notes that “any evidence that MAJ H is a possible contributor, even to a small degree, would still be highly probative.” But that’s the problem – there is simply no evidence that he is a possible contributor! It is pure speculation based upon 5 alleles at 4 loqi and why it proves nothing in the context of a DNA “match.”

He concludes: When you are asking the fact-finder to speculate or assume or guess that there’s a “possible match,” without any science or evidence to back up that conclusion, that’s “unfair.” There may be no “mini-trial” but there’s a great “probability” of a 3-ring circus. Thank you Dew_Process for this. One hopes that the Appellant will petition the Court of Appeals for the Armed Forces and that they will take the case.

In the meantime, consider a H challenge to the DNA as well as a challenge under Mil. R. Evid. 401 and 403.

In October 2015, the Texas Forensic Science Commission raised concerns about the accuracy of the statistical interpretation of DNA evidence. Despite how it is often portrayed, in the media and in courts, the forensic science of DNA is far from infallible. Particularly concerning is that police and prosecutors now frequently talk of ‘touch DNA’ — genetic profiles of suspects and offenders that have been generated in a laboratory from just a handful of skin cells left behind in a fingerprint. Research done at the University of Indianapolis in Indiana has highlighted how unreliable this kind of evidence can be.

See, Cynthia M. Cale, Forensic DNA evidence is not infallible. 526 NATURE 611 (29 October 2015).

While numerous studies have hailed mindfulness meditation for its potential benefits for the mind and body, new research suggests it may have a negative impact on memory. While mindfulness meditation is believed to be beneficial for the mind and body, researchers say the practice may impair the ability to accurately recall memories. Published in the journal Psychological Science, the study suggests individuals who engage in mindfulness meditation may have less accurate memories than those who do not take part in the practice.

Look for this as an additional piece of potential junk science in courts.

(W)e seem to be on an endless quest to unmask the deceiver. This is easier said than done. The research is surprising. Even the professionals aren’t very good at catching people in a lie. When we do catch a lie, it’s often not for the reasons you may expect. There is no “Pinocchio’s nose”. That is, there is no single verbal, nonverbal or physiological cue uniquely related to deception.

See, Grimes, infra.

Some may be familiar with how military law enforcement tells commanders and other how they can spot a liar. There has always been a healthy suspicion about this so-called ability. Here is some current reportage that is a useful reminder to challenge their assumptions.

David Robson, The best (and worst) ways to spot a liar, BBC, 7 September 2015.

Thomas Ormerod’s team of security officers faced a seemingly impossible task. At airports across Europe, they were asked to interview passengers on their history and travel plans. Ormerod had planted a handful of people arriving at security with a false history, and a made-up future – and his team had to guess who they were. In fact, just one in 1000 of the people they interviewed would be deceiving them. Identifying the liar should have been about as easy as finding a needle in a haystack.

Using previous methods of lie detection, you might as well just flip a coin

So, what did they do? One option would be to focus on body language or eye movements, right? It would have been a bad idea. Study after study has found that attempts – even by trained police officers – to read lies from body language and facial expressions are more often little better than chance. According to one study, just 50 out of 20,000 people managed to make a correct judgement with more than 80% accuracy. Most people might as well just flip a coin.

Ormerod’s team tried something different – and managed to identify the fake passengers in the vast majority of cases. Their secret? To throw away many of the accepted cues to deception and start anew with some startlingly straightforward techniques.

Bill Grimes, Looking for Lying in All the Wrong Places, The Jury Expert, 28 Aug. 2015.

In 2006, two of the premier researchers in the field of deception detection, Charles Bond and Bella DePaulo, re-examined the results of over two hundred studies on how well people detect lying. They found that people were able to detect lies 54% of the time. You’d get 50% right by pure chance, so that’s not very impressive (Bond & DePaulo, 2006). Another study tested 13,000 people to see how many of them were good at spotting lies (O’Sullivan, 2008). Thirty-one were good at it. That is 2-tenths of one-percent (.02%), again, not very impressive.

Research also shows that lie experts – police interrogators, customs agents, even lawyers – aren’t any better at detecting lying than anyone else (Bond & DePaulo, 2006). Decades of research show that lie detection is a near-chance game (emphasis added).

You should be aware that there is a dispute about these issues, some of which is reflected in Michael G. Aamodt Ph.D.; Heather Custer M.S., Who Can Best Catch a Liar?: A Meta-Analysis of Individual Differences in Detecting Deception. 15 (Spring) FOR. EXAMINER, at 6 (2006).

First, if blacked out they can’t know they didn’t consent–it’s impossible if they were blacked out, rather than them exhibiting a convenient and selective memory.

Second, we know from medical science that a person can do a whole lot of things which does include the voluntary, and apparently consensual engagement is sexual activity. Here is an example, out of many, how a person can engage in a lot of thoughtful and physical activity and not remember it.

Enter Keith Fraley, a 19-year-old second year student of software engineering at Michigan Tech college, and his tweet about his roommate, Mark, a mechanical engineering student, who arrived home wasted and managed to design an entire plane – and woke up with no memory the next day.

Meet ‘Mark’, the crazy genius who designed an aeroplane while drunk, The Guardian.