Court-Martial Trial Practice

The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues. United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016). The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions…

The Army Court of Criminal Appeals will hear oral argument on Wednesday, August 3, 2016, at 10 a.m., in United States v. Ahern, No. 20130822. The court will consider the arguments of counsel on the following two issues. I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT…

In today’s CAAF Journal we see: No. 16-0615/AF. U.S. v. Zavian M.T. Addison. CCA S32287. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER APPELLANT IS ENTITLED TO…

If you are being prosecuted in the Air Force. If your military defense counsel is not raising this issue. WHETHER THE AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY…

Brett M. Kavanaugh, The Judge as Umpire: Ten Principles, 65 Cath. U. L. Rev. 683 (2016). First, and most obviously, a good judge, like a good umpire, cannot act as a partisan. Fifth, at the same time, to be a good judge and a good umpire you have to possess some backbone. Sixth, to be…

Very broad. Or, that’s how I interpret a 2-1 Order in H.V v. Kitchen and Randolph (RPI), MISC D. No. 001-06 (C.G. Ct. Crim. App. 8 July 2016). At trial, the defense sought mental health records of the complaining witness. After litigation on the issue, the military judge ruled that M.R.E. 513 did “not prevent…

There is an excellent post at Volokh Conspiracy. Here’s the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer’s testimony. The federal constitution, as interpreted by Brady v. Maryland and its…

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals? In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case. The court…

Do you have enough to read, well here’s more. In sum, the Miranda decision has, at best, had little or no impact on the risks of false confession and wrongful conviction. At worst, the influence of police on Miranda procedures and subsequent litigation has actually made things worse for defendants. Leo & Cutler, False Confessions…

I am an unabashed advocate of DoD finding a way to have all military courts in a module in PACER, or that DoD develop something similar. But, until that happens, military appellate court websites are a necessary tool for a military justice practitioner (TC/DC, SJA, MJ). So I do have a sense of frustration when…