Articles Posted in New Cases

A change to Article 66, UCMJ, has created difficulties in interpreting and applying the factual sufficiency standard of review and in deciding whether a charge should be set aside. Note: this change only affects cases where ALL findings of guilt are based on conduct alleged to have been committed before 1 January 2021. If it’s…

Generally 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…

A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to…

Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in the reports submitted to prosecutors…

14 September 2020, the court issued a published opinion in United States v. Livak, it’s a Moreno case analyzed with the new rules in mind. Appellant claims that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority’s action as required by United…

An accused in pretrial confinement awaiting trial receives day for day credit toward any sentence to confinement. In the old days, we referred to that as “Allen credit.” Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J.…

As I have argued, for some time in courts-martial, sex offender registration is effectively a punishment in today’s society–despite what legislators and courts say. Well, now we have an interesting decision from the Pennsylvania Supreme Court, in a 3-1 decision, about ex post facto changes to SOR. [T]he provisions of the state’s sex offender registration…

In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces decided that– [B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence…

The Court of Appeals for the Armed Forces has decided United States v. Wilson, __ M.J. __, No. 16-0267/AR, for the appellant. The issue was: Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor…

The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues. United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016). The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions…