Articles Posted in Instructions

From time to time I find a need to ask for a special instruction or a rewording of a BB instruction. Here is a favorite, in BAH/TAD/TDY fraud cases: I have asked for (but not gotten) a “Consciousness of Innocence,” instruction in cases where there is evidence to support it (cooperating with NCIS, giving a…

Maybe not. There is quite a bit of research and anecdotal evidence to show that eyewitness testimony can be unreliable. Now New Jersey is in the frontline of making sure a jury is aware of the potential problems with eyewitness testimony. To quote the ABA Journal. New jury instructions in New Jersey will warn that…

I posted yesterday on a new Army case dealing with instructions on an affirmative defense in a court-martial under the UCMJ. Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010. In his sole assignment of error, the appellant alleges that the military judges erred in failing…

United States v. Stanley. The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon. One assignment of error warrants discussion, but no relief. Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense…

In the United States v. Jones the facts cited by the court show a consent defense. However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one. There being no evidence of an affirmative waiver the findings and sentence were set aside. A military judge…

Here are the military justice related articles in the new Army Lawyer. Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment “I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial The Impact of Melendez-Diaz v. Massachusetts on Admissibility of Forensic Test Results at Courts-Martial Armed for the Attack: Recent Developments in Impeachment Evidence…

CAAF has decided two cases related to Abu Ghraib: United States v. Harman, and United States v. Smith. The issue in Harman was factual sufficiency and the conviction and sentence was affirmed. Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head,…

Jury instructions are too often so poorly written that even the most intelligent juror cannot understand them. That’s a serious problem. So how can we make jury instructions more understandable? Prof. Peter Tiersma offers many concrete suggestions in this article, available for free download on SSRN. If you’re a trial judge or trial lawyer, you…

Here I’m talking about limiting instructions at court-martial, not alleged curative instructions. A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes. Here is a reminder from federalevidence blog of how that works. In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied…