Court-Martial Trial Practice

The potential impact of Padilla v. Kentucky is ongoing. Two primary issues. Is the holding retroactive. The Supremes have that issue before it. Does Padilla extend the defense counsel obligations beyond immigration consequences? We know in the military from United States v. Miller what a defense counsel obligation is when a client pleads guilty to…

A new piece on this difficult subject. Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research

Here is an interesting little piece. The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense. Instead, efforts to counter violence should focus on prevention and mitigation of the threat. The DSB…

on court-martial convictions. Here is another case in which a military prisoner has attempted to litigate his trial, and been denied. Faison v. Belcher (the former Commandant, USDB).

The constitutionality of Article 119a, UCMJ, may be headed back to CAAF. But there is no guarantee CAAF will grant a petition. AFCCA has decided United States v. Cooper. In a short opinion relying on United States v. Boie, 70 M.J. 585 (A.F. Ct. Crim. App. 2011), pet. denied 70 M.J. 416 (C.A.A.F. 2011), the…

Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes Aviva Orenstein Indiana University Mauer School of Law Tamara Rice Lave University of Miami, School of Law September 7, 2012 Indiana Legal Studies Research Paper No. 209 University of Cincinnati Law Review, Forthcoming Abstract: In a significant break with traditional…

Thanks to Prof. Berman TG, here is a resource for collateral consequences of a conviction. Unfortunately there are only nine state jurisdictions and federal filled in – a ways to go on a useful project. Another place to look is SentencingProject.org. (Note, it will be necessary to “sherardize.”) , or A Practitioner’s Guide to Collateral…

The CAAF held that there is no right of confrontation at sentencing. The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do). United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000). The question in the title of…

As Prof. Colin Miller TG points out in a new post, Fed. R. Evid. 804(b)(6), applies to both sides. The Mil. R. Evid. contains the same language. For an example of a case in which the government forfeited its right to object to the defendant’s admission of hearsay from a declarant whom the government rendered…

“With respect to deviations from the model instructions in the Benchbook, we note that the military judge was not required to follow literally the non-binding examples therein. SeeUnited States v. Bigelow, 57 M.J. 64, 67 (C.A.A.F. 2002).” United States v. Simpson, 58 M.J. 368, 378 (C.A.A.F. 2003).