Court-Martial Trial Practice

We all have clients who have been ordered to enter their passwords to their cellphone so the investigators can forensically examine the phone. As military defense counsel we frequently have these issues come up. In 2018 there were an estimated 396 million smartphones and cellphone accounts nationwide. Carpenter v. United States, 585 U.S. ___, 138…

We all have clients anxious to know their SOR status post-conviction. We are required to, at minimum, advise them of the DoD regulation when there is a guilty plea for charges which might require registration. But clients are never satisfied. Here is one case that might have some relevance to registrant’s in South Carolina. The…

There was a time when having adverse information in a restricted folder in the official record meant something in terms of lasting effect of that information. Over time that changed if the officer was selected for promotion. A post-selection screen was then made of everything before forwarding the officer’s name for promotion. Now, Army officer…

What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations? Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations. Prohibited Testimony or Other Evidence. During an inquiry into the validity…

Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), requires us to visit the Hobson’s choice where you have successfully had evidence or statements suppressed but there is much value added if the client testifies. The issue then becomes one of potential impeachment with the suppressed evidence. Mil. R. Evid. 304(e)(1) gives us…

In United States v. Schloff, we had an issue with extraneous influences in the “jury” room. The two senior members essentially argued that the Army reputation for dealing with sexual assaults was relevant to their findings–and a guilty result ensued. At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking…

I think we all know that MCIOs use Cellebrite UFED devices and software to conduct DFEs of an accused’s cell or smartphone. Up until now, it seems, the DFE reports have been accepted as reliable and accurate so we do not often find ourselves litigating the reliability of the DFE reports. Have circumstances changed which…

The Army has announced servicewide and command-specific changes in the wake of a scathing independent report last year that called for a major overhaul of both its Criminal Investigation Command and its Sexual Harassment/Assault Response and Prevention Program, reports Army Times. The changes include the following, according to an Army statement: Army-wide Updated CID policies…

Until now, a person wishing to upgrade their discharge would file a petition with the Service discharge review board. Beginning April 2021, the Department of Defense has established a new and final board of appeal, called the Discharge Appeal Review Board. The new Discharge Appeal Review Board will allow those service members a final review…

Another item from Prof. Colin Miller Professor Katie Kronick (American University Washington College of Law) has posted “Forensic Science and the Judicial Conformity Problem” (Seton Hall Law Review, forthcoming) on SSRN. Here is the abstract: Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports…