Articles Posted in Trial-Craft(c)

Once the MCIO gets a “confession” or DNA in a sexual assault case, it seems, they stop investigating–bad. Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case. Complaining witness says she and accused were at a bar drinking and the accused later took…

The Air Force Court of Criminal Appeals (AFCCA) has issued an interesting en banc (5-3) opinion in United States v. Hamilton, 76 M.J. ___ (A. F. Ct. Crim. App. 2017), about victim impact evidence or statements. The accused pleaded guilty to the possession and distribution of child pornography. On sentencing, as we often see in…

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence. The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.” During presentencing testimony, the military judge asked BI, “You…

Under Article 62, UCMJ, the prosecution can appeal a military judge’s trial ruling under six circumstances. The two most common are: (A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification. For example, a military judge dismisses a specification because the specification fails to state…

As you know, Military Rule of Evidence 1102 provides that, Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken…

A prosecutor’s understanding of their duty. In exercising their awesome power a prosecutor should “Remember what it means to get it wrong. A criminal goes free. An innocent person is wrongfully punished. The community is less safe. The system has failed in its mission.” So says a former prosecutor with experience as a defense counsel.…

As part of due diligence defense counsel want to know as much about a witness as possible–that’s OK and ethical. Many of us have found helpful information on social media accounts. The gist of Formal Opinion 466 is that, within the context of Model Rule 3.5, a lawyer may review a juror’s or potential juror’s…

We caution trial counsel…[as to] how difficult this area of the law can be. There are still issues to be resolved in this arena…. With precedents far from settled, only the bravest of advocacy acrobats ought to tempt fate. (They do so at their own peril, for we guarantee no safety net against reversal). United…

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.” Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.…

John Wesley Hall’s website is an excellent resource for issues involving the Fourth Amendment–FourthAmendment.com. In pointing to a search warrant case Mr. Hall quotes from the opinion. We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise narrative of the facts stated in accordance with the standard of…