Articles Posted in Motions Practice

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals? 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…

On 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial. Changes to the rules of evidence are included. It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati. Basically, a military judge grants suppression when…

The Washington Post has a report today: 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…

Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.…

Update 15.9.14. 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…

On occasion I note civilian court opinions that reference or rely on military appellate case law. In my view, because of technology we see more courts, especially federal courts, cite to military appellate case law. In United States v. Buchanan, the accused sought to prevent a guardian ad litem (GAL) from filing motions. The court…

“That’s the Guy!”: Federal Rule of Evidence 801(d)(1)(C) and Out-of-Court Statements of Identification Found in 34 CARDOZO L. REV. 1539

Result – statements suppressed, and will be in the 9th because of Sessoms v. Runnels, No. 08-17790, 2012 U.S. App. LEXIS 17206 (9th Cir. 2012) Wow. What about Davis v. United States? 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…

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798). Article I, section 9 of the United States Constitution states in…

I have for some time been challenging the limitation on the defense opportunity to get depositions. 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…