• Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
• Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.
• Resource Management: Statutes of limitations play a crucial role in efficiently managing law enforcement and court resources. These institutions have limited resources, and prioritizing recent crimes helps them focus on cases with fresher evidence and more readily available witnesses.
• Public Interest: Statutes of limitations are not just about justice; they also consider the public interest. Allowing people to move on with their lives after a certain period, especially for less serious offenses, benefits society. This broader impact is an important aspect of these legal concepts.
• Serious crimes often have no statute of limitations. This includes offenses like murder, war crimes, and crimes against humanity.
• Statutes of limitations can be ‘tolled’ (paused) under certain circumstances. For instance, if the defendant flees the jurisdiction or if the crime is concealed, the statute of limitations may be extended. This means that the clock on the statute of limitations stops running during these periods, ensuring that the defendant cannot escape justice by simply waiting out the time limit.

The statute of limitations (SoL) in Article 43, UCMJ, limits the ability to prosecute specific charges at court-martial. While the general rule is five years, many offenses, such as sex offenses, have longer SoLs. For example:

• There is no SoL for AWOL in times of war, murder, rape, sexual assault, rape or sexual assault of a child, maiming of a child, kidnapping of a child, or any other offense punishable by death, or
• having committed a child abuse offense against a child and sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period.

It is important for military defense counsel to always check the SoL for each specification and make a motion to dismiss if appropriate. However, keep in mind several points (1) the SoL can be waived, usually as part of a pretrial agreement (PTA), or (2) can be waived or forfeited by defense counsel not making a timely motion to dismiss.

A common term in a PTA is that the accused will “waive all waivable” motions. The accused needs to understand how that bargaining chip works. And military judges have to be careful when that comes up. It is unclear what happened during the PTA discussions in Espejo. Espejo was charged with multiple sexual assaults of a child over time. He pleaded guilty with a PTA and was sentenced to 50 years confinement. The main issues were:

Statute of Limitations: There is no discussion during the trial or the PTA proceeding about the applicability of the SoL to one of the charges. It appears neither the defense and prosecution lawyers nor the judge realized there was an SoL problem with one of the specifications. Ergo, the military judge’s error in accepting a guilty plea to a charge outside the statute of limitations is a serious issue. Had the military judge asked the right questions, there’s possibly a valid waiver would have been identified and thus no issue on appeal. However, there was an error, and upon sentence reassessment, the confinement was reduced to 43 years.

Plea Agreement: The plea agreement contained language that violated the Appellant’s post-trial and appellate rights. Specifically, the language in question restricted the Appellant’s ability to appeal the case. This language was struck from the agreement. The court opinion reads as if this was the prosecution being creative in bargaining, which didn’t succeed.

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.

The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

Unanimous verdicts at court-martial are not currently required by law. Under UCMJ, a guilty verdict in a general court-martial, which is the most serious type of court-martial, can be reached by a two-thirds majority of the members of the panel. This means that a defendant can be convicted of a crime even if one-third of the panel members do not believe that they are guilty.

However, there is a growing movement to require unanimous verdicts in courts-martial. In 2023, the House of Representatives passed a bill that would have required unanimous verdicts in courts-martial. However, the bill was not passed by the Senate.

There are several arguments in favor of requiring unanimous verdicts in courts-martial. One argument is that it would protect the rights of service members and ensure that they are not convicted of a crime unless all members of the jury agree that they are guilty. Another argument is that it would promote fairness and accuracy in the military justice system.

There are also some arguments against requiring unanimous verdicts in courts-martial. One argument is that it would make it more difficult to convict service members of crimes. Another argument is that it would be more difficult to reach a verdict in some cases, which could lead to hung juries. If the principle of innocent until proven guilty beyond a reasonable doubt is to be maintained, then appropriate “difficulties” in getting a conviction ought to be followed.

The debate over unanimous verdicts in courts-martial is likely to continue. It is an important issue that has implications for the rights of service members and the fairness of the military justice system. Unfortunately, there is betting that the Supreme Court will give deference to Congress as it usually does when Congress acts under its “Make Rules” authority to govern military discipline and justice.

Congress is subject to the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings. But in determining what process is due, courts “must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, §8.”

In the meantime, Congress has been paying some attention to the issue, as noted by the bloggers at Save Our Heroes.

Rebecca Kheel reported that Court-Martial Convictions Would Need Unanimous Jury Verdicts Under a Measure Added to Defense Bill. Military.com, 17 July 2023. Indications are that proposal won’t be adopted. UCMJ, court-martial, air force court, navy court, army court

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

What should the military defense counsel being doing now at trial? One step is easy, but there may be other steps that should be considered.

Step One: file a motion with the trial judge that the members should be instructed that they must have a unanimous vote for any finding of guilty. Most military are already doing this. The military judge will almost certainly deny the motion, but you have put the issue on the record for appeal. Because the voting is a constitutional issue, an Appellant whose case is still under review might benefit from a favorable change in the law while the case is still on appeal.

The Supreme Court has previously held that an appellant might benefit from the change in the law. Griffith v. Kentucky, 479 U.S. 314 (1987). The Court of Appeals for the Armed Forces (CAAF) has followed that rule in, for example, United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). There is some suggestion that the retroactivity principle need not always apply–this is fact specific and adds uncertainty. Your military appellate defense lawyer is able to help navigate this problem. CAAF has looked at the issue in United States v. St. Blanc, 70 M.J. 424 (C.A.A.F. 2012) in relation to what remedy to apply.

But,

Step Two. It seems to me that there is an earlier point in the trial where the military defense lawyer needs to object to the nonunanimous verdict rule. At the arraignment, the judge advises the accused of their forum rights–officer members, officer-enlisted members, or judge alone. Here the judge tells the accused about the voting requirement. Perhaps, at this stage, the military defense counsel should object and ask the accused to be advised that the voting will be unanimous. The judge will not do that because, again, under current law, she doesn’t have to.

Why Step Two?

Forum choice is always difficult–some cases are usually best tried by a judge alone most others should be a jury (members) trial. What we don’t know is whether a case that might be best by judge alone would be better as a jury (members) trial if a unanimous verdict is required. It’s a combination of numbers and intuition about who the members are. Some of us more experienced military defense counsel are familiar with the old numbers game of how many members to have on the jury.

So, one of the new issues we’ve been raising has been the denial of a proper forum choice based on the judge’s initial forum and voting advice. This becomes important on appeal where the accused has elected trial by judge alone but would have elected members if the voting had to be unanimous for guilt. It’s rather simple–it might be easier to convince one member to vote not guilty than three.

At Cave & Freeburg, LLP, we try to be creative and thoughtful about your defense and consider all options that might work in your favor.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Unfortunately, the military lawyers in the Cabrera case did not do what we would have done. In Cabrera, the military defense counsel properly objected to the second trial but then allowed the second trial to continue without taking any further action to protect his constitutional right to be protected from double jeopardy. They should have filed a Writ and Motion for a Stay of Proceedings pending the resolution of the Writ Petition. That’s what we did in Murillo. Cabrera was convicted and sentenced to confinement. It was on appeal, years later, that the issue of Double Jeopardy was decided in his favor and the charges dismissed. While that decision was being made, Cabrera was in confinement for several years. The case is United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020). (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

NOTE: The Double Jeopardy Clause does NOT prohibit the state and the military from prosecuting you for the same offense(s). This concept comes from the Dual Sovereign Doctrine.

Should you be facing court-martial and the charges are dismissed during the trial, please contact us to discuss your options if there is a potential that the prosecution will make a second attempt to prosecute you on the same charges.

mljucmj@court-martial.com for related appellate issues nathan.freeburg@freeburglitigation.com for representation in a second trial

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.

Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” Jones, 73 M.J. at 361 (footnotes omitted) (citation omitted). However, the second of these prongs is met only if the questioner was acting in an official law enforcement or disciplinary capacity, or could reasonably be considered to be acting in such a capacity by a “reasonable person” in the suspect’s position. Id. at 362. “Questioning by a military superior in the immediate chain of command ‘will normally be presumed to be for disciplinary purposes,’” although such a presumption is not conclusive. Swift, 53 M.J. at 446 (quoting United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991)) (additional citations omitted). An “interrogation” includes “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” Mil. R. Evid. 305(b)(2).

United States v. Ramesk, AFCCA, 29 Oct. 2018, at 17.

In United States v. Cox, decided by the Navy-Marine Corps Court of Criminal Appeals in November 2018, the Appellant raised three issues, one of which asked whether statements to a [civilian but military retiree] recovery care coordinator should be suppressed because they were not preceded with an Article 31, UCMJ, warning. The initial problem for Cox was her counsel’s failure to raise the issue prior to trial but waited until after entry of pleas. The CDC made the motion late–note this was a civilian counsel case (CDC). The CDC waited until testimony on the merits. It appears that the CDC acted “to gain a tactical advantage over the government.” Slip op. at 5. What advantage was to be gained is not clear from the record, other than an unprepared TC who now has to answer a significant motion on the fly.

(In practice, you should be careful when entering pleas. If possible delay entry of pleas as long as possible, most judges will allow a delay until a later date specified in the trial management order or will allow counsel to defer motions to a date set in the trial management order regardless of the entry of pleas.)

Here, the military judge did not find good cause for the delay in moving to suppress statements and found the issue was waived. Regardless, the military judge appears to have addressed the suppression issue (perhaps concerned that the NMCCA or CAAF might not find the issue waived). The military judge ruled that the civilian employee witness was not required to advise the accused of her right to silence. NMCCA found the issue was waived, but like the military judge addressed the suppression issue anyway and held the military judge did not abuse his discretion by admitting any incriminating statements.

In addressing the IAC claim for failure to raise the motion timely, NMCCA found there was no prejudice because the motion would have failed anyway. It will be interesting to see how CAAF if it grants a petition, deals with the issues. The law on civilian employees of the military and their obligation to give Article 31, UCMJ, warnings is reasonably clear at this point, but perhaps CAAF wants to put another nail in the coffin of a civilian employee’s Article 31, UCMJ, “obligation” and leave the question for resolution on a case-by-case basis. If the CAAF does find the statements should have been suppressed then they get to the waiver and IAC issue.

As reported in this press release, yesterday “Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law.” Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard. This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind…. “Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime. The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law.” “I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent. As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

Prof. Berman observes:

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here. It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has “mandated overly harsh penalties for too many crimes”).

I think this is what he’s looking for.

Two recent CAAF cases have addressed mens rea concerns.

United States v. Tucker, 76 M.J. 257 (C.A.A.F. 2017) and United States v. Blanks, petition granted 31 August 2017, so a decision is pending.

[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.

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case. The court holds that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

That’s the BLUF.

The defense litigated the issue at trial. And the military judge stated:

[A]lthough he found no case law on point, he interpreted existing precedent to stand for the proposition that showing a digital image or sending a digital image via electronic means could constitute a basis for an indecent exposure charge. The military judge denied the defense motion to dismiss.

The appellate court found ““Exposure” is not specifically defined by Article 120(c), UCMJ, Article 120(n), UCMJ, or under the prior Article 134, UCMJ statute.” Slip op. at 5. The court then resorted to standard statutory interpretation to determine what the term meant. They referenced a recent case of mine for how to interpret UCMJ terms. See United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015), cert. denied Schloff v. United States, ___ U.S. ___, 193 L.Ed. 2d 793 (2016). And the court held:

We find as a matter of law, these displays do not constitute an exposure for the purposes of these statutes because appellant did not ‘expose’ his actual live genitalia for view by the victims.

The dissenting judge began:

The reasoning of the majority in dismissing these specifications evinces an erroneous interpretation of the plain meaning of the term “expose,” a flawed statutory construction analysis, and a failure to apply the applicable case law of this court as well as our superior court.

And concludes:

The facts are not complex, the definition of expose is unambiguous, the intent of Congress is clear, the case law of this court is persuasive, and the precedent of our superior court is controlling. I would affirm the findings and sentence as adjudged.

The [members] panel sentenced appellant to a bad-conduct discharge, confinement for nine months, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority disapproved one month of confinement. Upon reassessment, the appellate court approved only six months of the confinement. A Pyrrhic victory, because the Appellant had served all of his confinement by the time the appellate court acted.

I checked the Daily Journal for the Court of Appeals for the Armed Forces and do not see a certification docketed from the Army TJAG. Under the current U.S.C.A.A.F. Rule 22(b)(1), the government has 60 days from the date of the opinion to file a Certificate of Review under UCMJ art. 67(a)(2)–29 May 2016.

“exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”

Mil. R. Evid. 311(a)(3) (2016).

The change generated a hearty discussion about evisceration of an accused’s fourth amendment rights, although an observer over the years might wonder why the change took so long to be put in writing. We know that the underlying principle has been in use in federal courts at least since Herring v. United States, 555 U.S. 135, 152-153 (2009) and Davis.

How might litigation develop the rule. It seems generally accepted that the burden to show x is on the prosecution, not the defense. In taking an initial look at how the matter works in federal court, by serendipity I was pointed to United States v. Luke.

Despite the apparent breadth of the exclusionary rule, it is not without limitations. Indeed, suppression of evidence should not be a court’s first impulse. Real deterrent value is a necessary condition for exclusion, but it is not a sufficient one. The analysis must also account for the substantial social costs generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. Davis. Whether to exclude in this case is a complicated question. The Court has found that the neither the first warrant, consent, nor plain view authorized the seizure of Defendant’s computer equipment, and that, if only that seizure were at issue, Leon would not save it. But, the Court has also found that Defendant’s consent led to the perfectly permissible observations that law enforcement made during the search that were then relied upon to obtain the second warrant, which was also invalid. But, was law enforcement’s reliance upon those observations and other information when seeking the second warrant sufficient underLeon and following cases to save the search? Do the deterrence benefits of suppression outweigh its heavy costs as required by Herring and Davis? These are challenging questions, and the arguments presented to the Court thus far do not address all the relevant considerations. The law is complicated as well and may, or may not be, settled. In addition to the cases cited immediately above, the Court believes that a good starting point for counsel is United States v. Fugate, 499 F. App’x 514 (6th Cir. Sept. 7, 2012), which identifies certain relevant guiding Supreme Court and Sixth Circuit decisions. Also potentially helpful are the characteristics identified by Judge Wier in footnote 16 of his Recommended Disposition in United States v. Dawson, No. 5:13-CR-7-DCR-REW, 2013 U.S. Dist. LEXIS 51427, 2013 WL 1332573 (E.D. Ky. Mar. 15, 2013).

United States v. Luke, No. 6:15-CR-10-GFVT-HAI-1, 2016 U.S. Dist. LEXIS 70544, at *66-67 (E.D. Ky. May 31, 2016).

In the second development from the

the Courtissued a unanimous decision in United States v. Evans, __ M.J. __ (C.A.A.F. 2016), a case affecting UCMJ art. 31(b) rights. The court cleared up some confusion on which test an appellate court should apply to challenges to confessions.

violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation. This dichotomy then leads us to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in Kerr; and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the “harmless beyond a reasonable doubt” standard, as was done in United States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006).

And to be clear, the court tells us that, “any precedent to the contrary is hereby abrogated.” Slip op. at 7.

Your military defense counsel will in the future have to keep in mind that the courts of criminal appeals (CCA) will apply the following test to determine whether the admission of in violation purely of UCMJ art. 31(b) is harmless. This is a lower and less stringent test than the harmless beyond reasonable doubt test for a constitutional violation. When we talk constitutional violation we are talking Fifth Amendment issues such as a coerced confession or one where there has been no Miranda advice. The CCA will ask:

• What is the strength of the government’s case,
• what is the strength of the defense case,
• what is the materiality of the evidence in question, and
• what is the quality of the evidence in question.

The test is based on United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).

Your military defense lawyer will aid your case on appeal if there is evidence and argument about the four factors listed above. This is basic considerations of issue preservation that any good trial military defense lawyer can address, to aid your military appellate lawyer.

So, is military law devaluing a military members rights, or is the law adjusting to reality–almost a no harm-no foul approach? Perhaps the reality argument applies best to how an invalid search will be treated. It remains to be seen whether the new Rule 311 addition will affect the current parsimony of trial judges in granting suppress of evidence seized in a search.

These rules then will apply at the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, and the other Service CCA’s.

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000. Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

If the vaunted FBI examiners can make errors, then surely the examiners at USACIL, DCFL, and similar “labs” can have problems.

One of the underlying issues may be that examinations for law enforcement purposes are not “blind.” What do I mean by that? Go back and look at a few examinations you’ve seen for your case recently. When the samples are submitted for testing the field agent normally submits a statement or outline of the case. Essentially, they are telling examiners the result they want–the evidence matches the suspect. See comments here. I know I talk about this frequently–the confirmation bias phenomenum–but here is my evidence Prof’s thoughts on how the manner in which samples are submitted, and tested, can lead to the potential for a flawed result.

Commentators have identified bias as a serious problem in the forensic setting. As one commentator noted: “To the extent that we are aware of our vulnerability to bias, we may be able to control it. In fact, a feature of good scientific practice is the institution of processes—such as blind testing, the use of precise measurements, standardized procedures, statistical analysis—that control for bias.” A 1996 National Academy of Sciences report on DNA testing recommended that laboratory procedures “be designed with safeguards to detect bias and to identify cases of true ambiguity. Potential ambiguities should be documented.

Keep in mind that internal quality assurance reviews do not solve this potential problem. The incentives for the QA examiner are no different than the initial examiner. Some of you may remember from quite some years ago the Brooks AF drug lab scandal. This involved a blind negative sample submitted by AFIP, which was reported by the laboratory as positive for a controlled substance. I remember a case where the female client’s sample was reported positive for a controlled substance. It was not until the case reached an adsep board and we got “discovery” that we noticed that the testing data showed the presence of male DNA in the sample. The government’s expert testified that the result was correct, but that it must have been contaminated somewhere in the collection and testing process. Despite this the command persisted in going forward to a finding of no misconduct.

Here is a piece from Marc Green, about how these human factors mentioned above can affect the reliability of a forensic test result. Whereas the FBI describes the handwriting methodology. They have this interesting statement.

The FBI Laboratory has not established a specific number of “points” or characteristics needed to identify a questioned writing as having been prepared by a particular individual. In order for a forensic document examiner to identify an individual as having prepared a questioned writing, agreement must exist between significant characteristics in the questioned and known writing with no significant differences. The examiner must explain any exceptions.

Yes, there is a wide degree of subjectivity. See here for a discussion of the points issue. Prof. Jennifer Mnoonkin writes here on fingerprints.

The point here is that you yourself should not engage in your own blind confirmation bias–which is to accept without examination the findings of a forensic examination. As several writers point out, there may be quite a bit of other evidence in your case which goes to prove the accused’s guilt, and that the forensic examination is merely icing on the cake. But in close cases it’s worth a read to peel the onion on forensic tests and reports. Certainly the research and questions about the reliability of forensic testing may well help lay a foundation for expert assistance. There may be support for what it is the expert is going to do for the defense.

1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001). Without this finding, there is no IAC even if there is an error, because there is no prejudice. However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error. There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion? No.

Do you have to raise every single motion the client asks you to? No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal? We know the MJ can hold such a hearing.

Here is a link to the government notice of an intent to appeal, and a motion I have filed with the ACCA.

So, client is a medical provider initially accused of committing sexual contact by a, “fraudulent representation that the sexual contact served a professional purpose.”

Six former patients alleged that when the client gave them a heart and lung examination when they presented for medical care, he didn’t need to give one, or that it was done improperly.

After the Article 32, UCMJ, investigation the convening authority elected not to proceed on one of them, but elected to refer five specifications to general court-martial.

At trial we litigated a motion that the CA abused his discretion because the IO did not find reasonable grounds to believe a crime had been committed for three of the five. The military judge denied the motion.

At trial we raised the motion for dismissal for failure to state an offense. The touching’s had all been done with a stethoscope. At no time did any complaining witness say she was touched by his body. The argument is based on a failure in the statute to require that an object can be the source of the wrongful contact vice what the statute says – a body part. The judge decided to defer ruling until the RCM 917 stage of trial.

Prior to evidence, the prosecution withdrew two specifications which left three for trial before the members. The military judge denied an RCM 917 motion and again kicked the failure to state can down the road.

The members found the client guilty of only one of the three specifications. At that time I asked the judge to enter a finding of not guilty citing to United States v. Griffith, and also asked for a decision on the motion. Deferred again.

The members adjudged a dismissal only.

At this time the judge denied the Griffith motion, but did dismiss the specification for failure to state an offense.

Now we are waiting to see if the Gov. will take an Article 62 appeal.

This case presents some interesting factual, legal, and strategy issues. But regardless the client’s not in jail.

Found in 34 CARDOZO L. REV. 1539

Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights. So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.

Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and Berghuis remains: Sessoms made his statements before he was informed of his rights under Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).

Frankly this is a real world interaction and accounts for real world talk not fully appreciated, or perhaps ignored in Davis. The police here did what they often do and told the accused that having a lawyer wouldn’t help. True, it’s the 9th, the most slapped down circuit.

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Here is Prof. Colin Miller TG’s blog on the retroactive application of FRE 413-414.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

The Criminal Rules Enabling Act, Max Minzner, University of New Mexico School of Law July 10, 2012 46 University of Richmond Law Review 1047 (2012)

Abstract: The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA. This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.