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…
Continue reading ›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…
Continue reading ›Prof. Peter Tillers, How Distinctive Must a Modus Operandi Be to Serve as a “Signature“? Tillers on Evidence and Inference, 13 February 2009. Military Rule of Evidence 404(b), United States v. Huddleston, 485 U.S. 681 (1988), are at the heart of Prof. Tillers’ critique. In his view the rules requiring more than just happenstance are…
Continue reading ›Some snippets from cases released to LEXIS. Plain view. Under the plain view doctrine, evidence may be seized without a warrant if the following three conditions are met: “(1) ‘the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed,’ (2) the object’s incriminating character…
Continue reading ›The NMCCA has heard oral argument and has a case pending which challenges the constitutionality of the “new” Article 120, UCMJ. All the other Service CCA’s or MJ’s to consider this issue have found the statute constitutional. The MJ’s have taken varying approaches in the court-room though. One MJ I had ended up basically using…
Continue reading ›As I sit in the VA crim law CLE we have an hour on immigration issues and convictions. The VA crim law Bar considers the consequnce of conviction to be a “very important” aspect of criminal law practice. And other consequences seem just as important. Sent from my Verizon Wireless BlackBerry
Continue reading ›United States v. Rose, __ M.J. ___, No. ACM 36508 (A.F. Ct. Crim. App. Feb. 12, 2009), has been released. Thanks to CAAFLog for early access to this important case. This is a case on collateral consequences of court-martial convictions. We’ve discussed SOR several times. The discussion of collateral consequences, especially in guilty plea cases…
Continue reading ›Patrick Clayborn, Pre-court-martial hearing held for Fort Rucker soldier, 11 February 2009. So called shaken-baby cases can be difficult. The evidence of nexus between acts alleged and injury or death can be ambiguous and subject to interpretation, or in some cases overpowering. There are several cases worth reading in this area, Warner, in particular is…
Continue reading ›Greg Bruno, Backgrounder: Closing Guantanamo, Council on Foreign Relations, 12 February 2009. You will notice a reference to trial by court-martial under the UCMJ. Some, including legal experts with the Congressional Research Service, suggest the current UCMJ structure might run counter to constitutional protections such as the right to a speedy trial. Good question. How…
Continue reading ›Peter Tillers, Prior False Accusation Evidence and the Confrontation Clause, 12 February 2009, draws attention to an excellent law review piece potentially relevant to a frequent number of military sexual assault cases. Jules Epstein, True Lies: The Constitutional and Evidentiary Bases for Admitting Prior False Accusation Evidence in Sexual Assault Prosecutions, 24 QUINNIPIAC L. REV.…
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