Articles Posted in Trial-Craft(c)

Whenever I talk about court-room lawyering I always emphasize that the person must first be themself and not try to become someone they aren’t. Once you decide who you are, your “style,” and how you will present, then you can take the other tools of advocacy and adapt them to your personality and form of…

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as…

I have mentioned several times that I always look for MySpace, Facebook, and other social network accounts held by witnesses at a court-martial trial I have. In a number of instances I have found information, photographs, or leads to other information that has been useful for cross-examination at the court-martial. Google and other social network…

Here are four very good tips from Evan Schaeffer of The Trial Practice Tips Weblog: “When the Judge Agrees With You, Stop Talking.” “Look at the Judge, Not Your Opposing Counsel” “Arguing a Motion Before a Trial Court: Begin at the Beginning” “Motion Hearings: Listening to the Judge”

Here’s a case discussing access to mental health records of a primary prosecution witness. This was a due process and confrontation case. Here, as is not an infrequent issue, the prosecution succeeded in having damaging information about their witness excluded. The prosecution then went on to give an “incomplete and inaccurate picture” of their witness.…

Barbara Rich Bushell, Identifying Leaders, 21(5) The Jury Expert, Sept. 2009. When I initially read this piece I did not see any relevance to a military Members panel (the jury). The military “foreperson” is preselected, and will be automatically selected after challenges – it’s the senior Member by rank and date of rank. However, after…

Since 1 October 2009, NMCCA has issued four new opinions. Here is United States v. Holmes, __ M.J. ___ NMCCA 200800501 (N-M Ct. Crim. App. 8 October 2009)( a Judge Meeks case of Wuterich fame). The other cases are sentence appropriateness and the usual administrativa. The appellant’s sole assignment of error is that the military…

SAUSA an interesting piece from Volokh which I posted the other day. It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, United States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004), United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir. 2002), but…

(1) An accused may not enter inaccurate, inconsistent, improvident, or uninformed pleas of guilty, and the military judge may not permit the accused to do so. UCMJ art. 45, 10 U.S.C. § 845 (1988); see United States v. Schwabauer, 37 M.J. 338 (C.M.A. 1993). (2) Therefore, before the military judge may accept the accused’s pleas…

From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided for a reason within the…