Litigator Libations

The Judge Advocate General for the Navy certified two questions to the Court of Appeals for the Armed Forces following the N-MCCA's denial of a victim's petition for a writ of mandamus.  The CAAF doesn't answer either question, but makes it clear that a victim does not have standing to challenge how, or whether, her alleged assailant is prosecuted.  We also hear from Major Crouch with thoughts on starting strong in your sentencing arguments.

In this episode we discuss the CAAF case of United States v. Palik, which involves an claim of ineffective assistance of counsel based on a failure to raise an R.C.M. 914 (Jencks Act) motion in hopes of forcing the trial court to disregard the testimony of the complaining witness.  The case gives us an opportunity to discuss both IAC and R.C.M. 914.  We also hear from Major Ciara Ryan on the issue of hearsay and, more specifically, evidence that is allowed as non-hearsay (e.g., effect on listener) and ensuring that evidence doesn't find its way into trial counsel's arguments.  

In today's episode we discuss United States v. Driskell, where the CAAF held that a military judge's dismissal for want of jurisdiction - after the presentation of evidence and findings argument - was essentially an acquittal and therefore no rehearing was authorized under the Double Jeopardy Clause in the United States Constitution.  We also briefly discuss the Hasan and Flores cases, but only very briefly.  We then get to hear from Lt Col Allen Abrams for guidance on effectively getting concessions from witnesses on cross-examination without explicitly requesting the concession.  

In this episode we discuss the recent C.A.A.F. case of United States v. Ramirez, which comes close to addressing the constitutional due process requirements in voir dire when the accused is charged with a crime of violence, the victim is of a different race than the accused, and the defense requests racial bias questions in voir dire.  The case is a near miss - but interesting nonetheless.  We also hear from Major Heather Bruha on defensive advocacy under the new Rules pertaining to victim impact statements, including specific sentence recommendations, no advance notice as to content, and perhaps more latitude in what amounts to victim impact.  

In this week's episode we stay very practical and have three presenters!  I start with a discussion about the recent AFCCA case of In re RW, where the court granted a victim's writ based on it finding that the military judge erred by requiring the mental health treatment facility to provide patient records so an attorney outside of the treating organization for a review and removal of privileged materials.  We then hear from Major Ciara Ryan regarding how defenders can prevent trial counsel from misappropriating hard won defense MRE 412 evidence.  Finally, we get an excellent update from Captain John Fredericks on the effort to protect client's from unconstitutional firearm prohibitions.  

In today's episode we discuss an interesting case from the Army Court of Criminal Appeals that involved successive courts-martial resulting in the ACCA dismissing the subsequent Charge and its Specification because the Convening Authority abused his discretion in not referring all known offenses to the original court-martial.  The subsequent prosecution amounted prosecutorial overreach and, therefore, an unreasonable multiplication of charges.  This gives us a chance to discuss multiplicity & UMC!  We also hear from Major Samantha Golseth who gives excellent advice to defenders; encouraging them to pull the elements of the offenses as early as possible and how to best use them as you prepare for, and put on, your defense at court-martial. 

In this week's episode I discuss Smith v. Arizona, which is a case currently pending before the Supreme Court of the United States.  The Court heard argument on the case on January 10, 2024.  The issue is how the Confrontation Clause may limit expert witness testimony.  Specifically, in Smith an expert testified that the substances seized from Smith were marijuana and methamphetamine based on his review of another expert's report and notes.  The expert also testified as to the steps the non-testifying expert took, her process, and the results.  Was Smith denied confrontation?  We also hear from Major Ciara who gives a very helpful discussion on how to approach the sentencing case - even for those challenging clients.  

In this week's episode - the first in 2024 - we discuss a case from the Navy-Marine Corps Court of Criminal Appeals - United States v. Harborth.  The case is a must-read for defenders because it addresses the special possessory and privacy interests applicable to electronic digital devices, the Constitutional interests regarding seizure as distinct from a search, and how even a lawful seizure can become unconstitutional when the government unreasonably delays in its search of the seized device.  We also hear from John Fredericks -- ADC at Davis Monthan AFB -- with an excellent walk through the state of the law regarding the federal firearm prohibitions set out 18 U.S.C. 922, and how to ensure your client's Second Amendment rights are protected.

In the last episode of 2023, Trevor Ward discusses the state of the law regarding who might qualify for victim status under Article 6b, despite having been a coconspirator in the offense.  We also hear from Allen Abrams, who accepted the challenge to describe how defense counsel might use a newspaper article to impeach a government witness.  He walks us through how we can use the article to prepare for trial as well as specific methods of using the article to impeach the witness on the stand.  Thank you to both Allen and Trevor for wrapping up 2023 with an interesting and helpful pod!

In today's episode I run through some of the changes implemented by Executive Order 14,103.  Many of the changes took effect in July 2023, but more are coming on 28 December 2023.  In addition, Major Ciara Ryan discusses expert witnesses -- including how to get them recognized as an expert, the rules applicable to experts, and how to get an expert detailed to your team.  Happy Holidays!

In this week's episode I discuss United States v. Brown, which is an interesting case insofar as there are three separate opinions with different answers on two aspects of the offense of disrespecting an NCO.  Specifically,  1) does the requirement that the disrespectful language be "used toward and within sight or hearing" of the victim require that a disrespectful text be written and sent within sight or hearing of the victim?  And, 2) does the requirement that "the victim was then in the execution of office" require the victim to be in the execution of his or her office at the time the disrespectful text was sent?  
Major Ciara Ryan also returns with an excellent discussion of a hot topic -- writs submitted to the Air Force Court of Criminal Appeals by a named victim.  This is becoming more and more common and defense counsel need to be prepared to limit the potential of any negative impacts to the client.  

In this episode I discuss the recent Court of Appeals for the Armed Forces case of United States v. Warda, which held that the military judge abused his discretion in denying a defense motion to abate the proceedings when a separate federal agency refused to provide evidence that was relevant and necessary and, therefore, essential to a fair trial.  We then turn to Major Ciara Ryan for a quick discussion on Character Evidence (a powerful tool).  

In this episode we discuss the Air Force Court of Criminal Appeals recent case of United States v. Cabuhat, in which it overrules its prior published opinion of United States v. Burkhart.  The issue was whether the offense of Sexual Abuse of a Child, where there is no physical contact with the child, requires the child to be aware of the accused's presence, if not the accused's conduct.  More specifically, the court focuses on what the statute means when it says the indecent conduct must be "in the presence of" the child.  We will also hear from Major Ciara Ryan (Captain at the time of her recording) who does a great job of distinguishing refreshing recollection from impeachment and the implications of each.  

In today's episode we discuss United States v. Harrington, 2023 CAAF LEXIS 577, which includes a discussion of the elements of communicating a threat, a request for a tailored instruction at sentencing, and we re-visit the issue of trial counsel attempting to hijack the victim's unsworn statement.  Major Allen Abrams then returns for a discussion on voir dire.  Specifically, the very beginning of voir dire and introduces the three H's to help counsel be thoughtful to be sure they get off on the right foot with the panel.  

Welcome to Season 3 of Litigator Libations!  In this lengthy episode we discuss United States v. Jeter, a recent controversial case from the Court of Appeals for the Armed Forces that forbids convening authorities from considering the race of a potential court-martial member for any purpose -- inclusion or exclusion.   We also hear from Major Allen Abrams on ensuring your client has a smooth transition to an appellate defense counsel should  he or she be convicted at court-martial.  

This is the last episode for Season 2 of Litigator Libations!  In this week's episode I discuss two recent cases from the Court of Appeals for the Armed Forces.  Specifically, United States v. Anderson, where CAAF rejects the arguments in favor or requiring unanimous verdicts at courts-martial and United States v. Smith, where CAAF stretches the excited utterance hearsay exception to cover epiphanies.  We then turn to Major Allen Abrams who discusses the Clergy privilege by not only explaining the rule, but giving great advice on how the rules applies to clients and other witnesses and things counsel should do when the privilege may come into play.  

In this week's episode we discuss the recent Supreme Court case of Counterman v. Colorado, where the Court held that a state criminal statute criminalizing stalking based on communications alone violated the First Amendment.  The Colorado statute allowed for a conviction based upon proof that the defendant knew he made the communications and that the victim reasonably suffered serious emotional distress from the communications.  The Court held that the First Amendment required Colorado to prove that the defendant knew that, or was reckless as to whether, his communications would likely cause serious emotional distress.  The case will impact Article 130 (Stalking) in the UCMJ although it will likely not impact Article 115 (Communicating a Threat).  This episode also includes a dispatch from Captain Heather Bezold, who shares her recent experience ensuring that her client was able to have his motion to dismiss for speedy trial violations heard and still benefit from a favorable plea agreement.   

In this week's episode we discuss the narrow  holding of United States v. Talkington regarding the member's use of a vague reference to sex offender registration in his unsworn, and compare that to a thoughtful presentation of the impacts of sex offender registration that are directly relevant to the principles of sentencing under RCM 1002(f).  We then discuss the waiver of privileges and address laying the foundation for what would be, but for the waiver, a privileged communication.  

In today's episode we discuss United States v. Shields; a recent CAAF opinion that points out two things:  1)  Even when a search is conducted pursuant to a lawful search authorization, the search must still be reasonable within the bounds of that authorization, and 2) Military Judge's have extremely broad discretion when it comes to findings of fact.  We then discuss group voir dire with some thoughts on how to phrase your questions to make them less confusing and more conversational.  

In this week's episode we discuss United States v. Kim, a recent CAAF case that speaks to unique aspects of pleading guilty to offenses speak to potentially constitutionally protected conduct, such as viewing legal pornography in the privacy of your home.  We next discuss issues to consider when conducting the required hearing on the admissibility of defense proffered MRE 412 evidence when the government does not opposethe admission of the evidence.  

In this week's episode we  catch up on some CAAF cases, including United States v. King (excusing a member after assembly), United States v. Vargas (standard for selecting a remedy for discovery violations), United States v. Behunin (sentence comparison in "closely related" cases), and United States v. McAlhaney (CCA standard of review regarding the content of a reprimand).  Major Allen Abrams then brings us a discussion of prior inconsistent statements in situations where it gets complicated because there are a number of inconsistencies in a single assertion.  

In this week's episode we discuss the recent unpublished opinion of United States v. Lara, which examines the advice defense counsel must provide regarding the potential for sex offender registration under the Sex Offender Notification and Registration Act (SORNA).  In the advocacy portion, Major Allen Abrams discusses how to work with combative witnesses on cross examination.  

In this episode we seek to recruit a producer of Litigator Libations and then discuss the recent CAAF case of United States v. Lattin.  United States v. Lattin is a Fourth Amendment case that hones in on the exclusionary rule and demonstrates the wide latitude military judge's have in admitting evidence seized in violation of the Accused's constitutional rights.  We then discuss some concepts to keep in mind as you plan for keeping notes and tracking the multitude of things that happen at trial.  

In today's episode Darrel discusses (at length) the issue of whether a client has a legitimate privacy interest in a forensic copy of electronic data seized from the client's electronic device, such as a cellular phone or laptop computer.  In McDonnell v. Maryland, the Maryland Court of Special Appeals held that the appellant in that case rekindled his reasonable expectation of privacy in a mirror-image copy of his laptop's hard drive when he revoked consent to search.   Major Allen Abrams then discusses when and how you might want to consider using open ended questions during your cross-examination.  

In this week's episode Major Allen Abrams discusses United States v. King, a recent case from the Court of Appeals for the Armed Forces.  The case conveys the importance of attention to detail when it comes to the proper excusal of a court-martial member after assembly.
In the advocacy portion, Major Abrams discusses options for dealing with a witness on cross-examination who are giving nonsense answers.

In this week's episode we discuss the recent C.A.A.F. opinion of United States v. St Jean, which analyzed the admissibility of evidence under M.R.E. 412.  In our advocacy portion, we discuss the use of a prior conviction for purposes of demonstrating the witness's poor character for truthfulness.  

In this week's episode we break down United States v. Valentin-Andino, which is a published opinion from the Air Force Court of Criminal Appeals.  In it, the court clarifies that a deferment request is not a request for clemency, and then relies on fairness and procedural due process to find that, like clemency, where a convening authority considers matters submitted by a victim when acting on a deferment request, the convening authority must provide notice and an opportunity to respond to the defense.  Major Allen Abrams then discusses how to ensure "gotcha" statements are admitted for the proper purpose at courts-martial.  

In this week's episode we discuss the recent case of United States v. Pyron, which was decided by CAAF on 17 January 2023.  The case addresses an exception to the general rule that the government may use an accused's testimony at a prior court-martial at a subsequent rehearing; and then finds the exception does not apply.  For our advocacy section, Major Allen Abrams discusses different aspects of authentication; the foundation for admissibility.  

In today's episode Major Allen Abrams discusses the unpublished Air Force case of United States v. Brown -- specifically discussing trial counsel's improper argument in sentencing by invoking command policy for purposes of increasing the punishment of the convicted Airman.  We note that the case cite to United States v. Greenwood was meant to be to United States  v. Gatewood; but the citation was correct:  65 M.J. 724.  In the advocacy portion of today's podcast, Major Matt Leal discusses The Chapter Method of cross-examination, as described to him by Mr. Larry Posner at a recent NACDL training event.  

In this episode we discuss the recent CAAF case of United States v. Day, which declined a defense invitation to overrule its precedent and held "attempt to conspire" continues to be an offense under the UCMJ (even though most jurisdictions reject such an offense).  We then move into a discussion of effective presentation style, with Major Allen Abrams discussing the effective use of volume.  Happy New Year!

In today's episode we will discuss some of the provisions of the FY23 NDAA.  At the time the Podcast was originally recorded the Senate had not yet passed the bill but, at the time of posting, it has--so disregard any discussion of potential changes to the bill.  In our advocacy portion, Major Allen Abrams will discuss the highs and lows of pitch, which is part three of his presentation of Presentation!  

In this episode Darrel discusses the two Air Force Court of Criminal Appeals opinions that were published in 2022:  U.S. v. Anderson and U.S. v. Heppermann.  The first case deals with waiver and the second case focuses on statutory construction; although the legal issue was legal and factual sufficiency.  We then turn to our advocacy portion where Major Allen Abrams discusses, and gives examples of, pacing and the impact it has on conveying meaning beyond the words themselves.  

In this episode you will hear Darrel Johnson discussing the CAAF case of United States v. Black, which was an Article 62 appeal of the trial judge's suppression of evidence seized after a consent search, but where that consent was sought based on an illegal search of the appellant's cellular phone.  Turning to our advocacy portion, Major Allen Abrams provides an introduction into a multi-part series on how to improve your delivery -- that is the "how" you say rather than just the "what" you say.  

In this week's episode Major Allen Abrams discusses an a doctoral thesis that focuses on the impacts on service member when the member is court-martialed on weak charges and then discusses word choice at court-martial and how getting rid of coordinating conjunctions may improve your story-telling.  

In this episode we discuss United States v. Bench, a CAAF cases that involves the remote testimony of a child witness, but the real issue is whether the Confrontation Clause is offended when trial counsel deceives the child witness by falsely informing them that the accused is not present and will not hear the child's testimony.  We then turn to Military Rule of Evidence 608(b), which allows counsel to cross-examine a witness on specific instances of contact that speak to the veracity of the testifying witness.  

Season 2 of Litigator Libations kicks off with a discussion of US v. Nelson a case where CAAF resolves nothing.  The issue is the proper remedy for an Article 31 rights violation but although three judges agreed the NMCCA should be affirmed, they could not agree as to why -- no precedential value but an interesting issue.  We next discuss the science and art of voir dire.  Welcome back to Litigator Libations!

In this week's episode we discuss the recent case of United States v. Palacios Cueto, which is a case where the appellant attacked every attorney at trial:  IAC claims for the defense and prosecutorial misconduct for the government.   All to no avail but an interesting case nonetheless.  We then discuss using (or, more accurately, not using) a lectern during arguments at trial.  

This episode comes a day late but contains some great information on the newly published DAFI 36-3211, Military Separations, as well as closing out the discussion on Prior Consistent Statements.  Thank you, again, Major Allen Abrams for the helpful info!

In this week's episode Allen Abrams returns to educate us on the Supreme Court downgrading Miranda warnings from a Constitutional protection to a prophylactic measure; he then begins our journey down the path to effective use of prior consistent statements.  Enjoy!

In this week's episode we briefly discuss a writ of prohibition issued by the Army Court of Criminal Appeals ordering the military judge in United States v. Dial to proceed with trial without instructing the members that a unanimous verdict is required and allowing conviction of the sex offenses upon agreement by three-fourths of the members.  We also discuss the Court of the Appeals for the Armed Forces case of United States v. Whiteeyes, which demonstrates how little independent evidence is required to corroborate a confession or admission.  Finally, we discuss an exercise from a storytelling course that uses non-verbals to help your client understand the importance of appearing composed and professional throughout the court-martial.  

In this episode Major Allen Abrams highlights some SCOTUS petitions that, although not military cases, may have an impact on military justice.  He then discusses United States v. Tate, where a gaff on the part of the court reporter resulted in a complete loss of a day of trial.  The issue was whether the trial judge's remedy was proper (it wasn't).  Major Abrams then walks us through how to lay a foundation for a presence sense impression and distinguishes that hearsay exception from others such as the excited utterance.  

In this episode Major Allen Abrams breaks down two recent cases from the Court of Appeals for the Armed Forces.  In Nelson the issue is whether the appellant voluntarily unlocked his cellular phone when he did so under a mistaken belief that, because the government had a search authorization, he had no choice but to unlock the phone.  In Horne the court addressed a UCI issue created by trial counsel and victims counsel (I choose no  apostrophe) colluding to deter AFOSI from interviewing the complainant's husband despite knowing the husband was the first "outcry" witness and had information favorable to the defense.  Finally, Allen does a great job of describing how he allows the story of the case to present itself as he works through the facts, law, and questions the case presents.  Enjoy!  

In this episode Major Allen Abrams discusses the recent court-martial of Major General Cooley (and the no-longer-a-sex-offense offense) as well as CAAF's recent decision in United States v. Edwards, which examines whether a prosecutor-created video with images and acoustic music can qualify as a victim statement.  Finally, Major Abrams breaks down how to lay a foundation for a business record with a witness at trial.

In this episode we discuss CAAF's interpretation of the scope of the "duty-to-report" exception under MRE 513 and provide a brief discussion of the foundation for establishing that the witness has the requisite personal knowledge under MRE 602.  

In this episode we discuss United States v. Simmons where the CAAF found that, based on the facts of the case, expanding the charged time frame by over nine months was a major change, and therefore prohibited under RCM 603.  We also discuss potential strategies for defense counsel when an important witness refuses to sit for an interview with defense counsel.  

In this week's episode we discuss a 1-2-2 opinion from CAAF that addresses, but does not resolve, whether sexual abuse of a child, which may be committed by a lewd act done "in the presence of" the child, requires the child to be aware of the conduct.  We then discuss the "learned treatise" exception to the prohibition on hearsay.  

This week Major Ryan Crnkovich steps in with an outstanding examination of unanimous verdicts in courts-martial after the Supreme Court's watershed case of Ramos v. Louisiana.  Major Crnkovich breaks down this complex issue with a walk through the significant case law and some excellent analysis.  

In this episode we discuss the first case out of the Court of Appeals for the Armed Forces to discuss the new Article 117a (wrongful broadcasting of intimate images) and we discuss questioning witnesses in a way that conveys that we dispute their testimony without confronting the witness (and thereby allowing them to repeat or bolster their narrative).  Happy Listening!  

In this episode we discuss the case of Hemphill v. New York, where the Supreme Court held that an accused did not waive his right to confront an absent witness when he offered  evidence that implied the absent witness was the true perpetrator of the offense.  
We then discuss how to respond when your witness refuses to remember a fact of consequence despite having their memory refreshed.

In this episode we discuss the case of United States v. Quezada, where the appellant was convicted of a sexual assault (Article 120) and of false official statement (Article 107) for denying that the sex act that amounted to the sexual assault occurred.  The issue is whether the "false exculpatory statement" instruction undermined the appellant's presumption of innocence and right to due process . . . it didn't.  We then move on to discuss the hearsay exception for declarations of a then-existing mental, emotional, or physical condition.  

This episode discusses the first opinion of the term from CAAF - US v Moratalla, where CAAF demonstrates that criminal law attorneys do not understand secured transactions.  The episode then goes on to discuss the often abused hearsay exception - excited utterances.  Happy listening!

In November 2021, the Air Force's Interpersonal Violence Task Force issued its report regarding the way the Air Force handles allegations of various forms of interpersonal violence, ranging from verbal harassment to physical violence.  This episode discusses how the report may assist defense counsel in negotiating alternative dispositions in certain cases.  The advocacy portion of the episode focuses on the admissibility and use of lay opinions regarding the demeanor of a third party.  Enjoy!

This episode discusses an Article from The Army Lawyer regarding the No-BCD Special Court-Martial and finally provides the fifth part of our five-part series on cross-examination with a prior inconsistent statement, in which we discuss proving up the prior statement.  

In this episode I provide a mea culpa and seek to course-correct when it comes to motions to dismiss for failure to state an offense.  Recently the President has sought to render these motions non-jurisdictional but the RCMs still allow it to be raised any time prior to adjournment.  Because I thought the motion was jurisdictional, I agreed with the judiciary that defense counsel were required to notify the court that it lacked jurisdiction over the offense.  But if it is not jurisdictional, and the RCMs say you can raise it at any time . . . there may be cases where you want to see how findings plays out before raising the error?   In the advocacy piece (at 15:37), I give some of my personal thoughts on opening statements.  Happy listening.

This episode discusses the first (and perhaps only) published opinion of the Air Force Court of Criminal Appeals in 2021 -- United States v. LePore.  In that case the full court met to decide they had no power to decide the issue of whether the Appellant's conviction triggered the firearm prohibitions of 18 U.S.C. 922(g).  The episode (at 14:30) then goes on to discuss the rules of completeness and how they apply at courts-martial.  

In United States v. Willman, the CAAF found that certain evidence could be considered by the CCA for one purpose but that the same evidence was not within the record for any other purpose (the takeaway is to ensure as much as possible gets in the record).  The episode then turns to what is often the most enjoyable part of the impeachment with a prior inconsistent statement -- the confrontation step!

The collection of DNA from Airman and Guardians accused of committing an offense under the UCMJ; and the crediting step of the impeachment by prior inconsistent statement.  

In this out-of-order episode, I discuss two CAAF cases (US v. McPherson and US v Adams) that both apply the literal wording of Article 43, UCMJ, to find that a five-year statute of limitations applies to some pretty egregious offenses.  The cases demonstrate how following the law can be challenging when you would prefer a different result.  Those cases are relevant to the Air Force's mandatory COVID-19 vaccine where some commanders appear to be ignoring the law to achieve the desired ends:  a fully vaccinated force.  

Is it lawful to include a mandatory punitive discharge in a Plea Agreement, even when Congress hasn't determined that a punitive discharge is required for that offense?  The second chapter addresses the "confirm" step in the impeachment of a witness using a prior inconsistent statement.  

In United States v. Steen, the appellant was charged with introduction and distribution of marijuana.  At trial, the government sought to admit text messages wherein the appellant sought to acquire marijuana for personal use.  The text messages were created after the alleged offense but the government argued it was, under MRE 404(b), admissible to show the appellant had a plan to maintain a certain amount of marijuana and the fact that he wanted some demonstrated that he must have distributed his stock to the informant and needed to replenish.  The case is interesting because it involves several rules of evidence, "opening the door" to excluded evidence, and the risk of broad assertions.  At about 14:19, the episode changes gears slightly to discuss using text messages on cross-examination.  

This is the first episode!  (So allow some grace.)  The episode discusses United States v. Tyler,Crim. App. No. 29572, C.A.A.F., April 26, 2021, which held that the unsworn victim impact statement is not evidence but it may, nonetheless, be commented on by trial counsel in sentencing argument.  The court also stressed the role of the military judge as gatekeeper to ensure that the statement contains only proper victim impact.  At 11:08 the episode shifts gears and discusses the concept of "depth" on cross-examination.  I hope you find it helpful!