Articles Posted in Trial-Craft(c)

This case could be very helpful to an accused overseas where the prosecution lets witnesses go PCS or off active duty prior to trial, with the idea that the deposition or Article 32, UCMJ, hearing testimony could be used. Note, this case doesn’t talk about MLAT’s. The government’s minimal efforts to contact an “unavailable” witness…

Here is the most recent Supreme Court case on IAC claims and evaluation of them. Knowles v. Mirazanyance, ___ U.S. ___ (March 24, 2009). In this case the appellant sought to convince the courts that his counsel’s failure to advance a defense was ineffective. The issue revolves around the existence or potential existence of a…

A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member’s have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that’s a Griffith motion. But first here is the…

Here are a couple of CAAF grants of immediate interest to trial practitioners. No. 08-0808/AR. U.S. v. Derand M. DAVIS. CCA 20070808 (couldn’t see this on the Army public website). Review granted on the following issue: WHETHER TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE…

Persuasive Cross-Examination: Juries don’t like it when you cross over from tough to just plain nasty, ABA Journal – Law News Now, http://www.abajournal.com/magazine/persuasive_cross-examination/ (last visited Mar. 27, 2009).

There are several times in a trial when I might ask the judge for a no contact order, to sequester witnesses, or to prohibit witness contact during a break or recess in the trial. I have a fairly standard format for rape and child abuse cases. These in my experience are the cases where the…

United States v. David, ACM S31478 (A.F. Ct. Crim. App. 10 February 2009), is of interest on the question(s) of when a military judge should recuse him or herself from a case. Here the military judge disclosed, in a naked urinalysis-cocaine case, close family member was a drug addict. The issue was raised as a…

If you are like me you are doing a lot of BAH fraud cases right now, especially for recalled or activated Guard and Reserve personnel. The AFCCA has issued an opinion about mistake and instructions in the fraud type case. United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App. 10 February 2009). In Armstrong…

Criminal lawyers can’t learn from civil practice lawyers and vice-versa? Let’s think of an Article 32, UCMJ, hearing as a deposition. In most cases it has the effect of a deposition in terms of fodder for cross-examination, direct, or preparation at trial (except for Air Force cases). [1] Also, in certain circumstances the Article 32,…

The Reporter, Vol. 35, No. 3 (Fall 2008) has a couple of articles worth reading. Major Jefferson McBride, CONFRONTATION CLAUSE: The Way Ahead with Remote Testimony, p. 20. Major Thomas Dukes, EXPECTATION OF PRIVACY? A Brief History, Including [United States v.] Long, [United States v. ] Larson, and DOD’s New Computer Use Policy, p.22. For…