In today's episode we discuss the recent Air Force Court of Criminal Appeals case of United States v. Doroteo, where the court discussed three important issues for defensive litigation:  1) liberal discovery rules applicable to military justice, 2) the awesome power of R.C.M. 914, and 3) the excited utterance exception to the prohibition against hearsay.  The advocacy piece this week is just some thoughts on how to get sex offender registration under SORNA into the defense mitigation case in sentencing (rather than just in the unsworn) so as to avoid the Talkington instruction that essentially tells the members to disregard sex offender registration as a collateral consequence.  

Happy Holidays!  Today's episode discusses the recent CAAF case of United States v. Wells, where Airman Wells asserted that Clause 2 of Article 134 (acts made criminal where they act is of a nature to bring discredit upon the armed serves) is unconstitutionally void for vagueness.  The CAAF found the Clause constitutional and re-iterated that the government is not required to prove that anyone knew of the conduct or that it actually impacted any person's opinion of the armed services.  Because the CAAF relies on Parker v. Levy for the constitutionality of Article 134, I take a detour to discuss that case in hopes of putting it in context.  We then hear from Major Nicole Moukar from the Appellate Defense Division with some important considerations and strategies when working with child witnesses.

Today we discuss a NMCCA case that dismisses an illegal drug use charge under Article 112a, UCMJ, for being factually insufficient.  The case provides a great vehicle for discussing the permissive inference instruction and how defenders should push back against its use when there is no actual evidence that would make the inference reasonable.  We then hear from Captain Brusik on the Novel Offenses Doctrine, which is closely related to the pre-emption doctrine for Article 134 offenses.  He does a great job of breaking it down and highlights defense challenges to charging allegations of sexual harassment under Article 92, when there is now an enumerated Article 134 offense for that offense.  

This week we discuss the case of United States v. Guihama, where the Court of Appeals for the Armed Forces revisits the issue of the quantum of evidence required to corroborate a confession before the confession can be admitted in evidence (spoiler alert - not much).  We then hear from Lt Col Tony Ghiotto who returns with weaponizing the rules of evidence and narrows in on character evidence.  

[Revised]  In this week's episode we discuss United States v. Flanner; an opinion from the Court of Appeals for the Armed Forces that walks back CAAF's earlier proclamation that the right to counsel attaches earlier in military justice than it does under the Fifth Amendment.  We then hear from Major Ciara Ryan on how to effectively communicate with and prepare your client while still maintaining professional distancing so as to preserve your own well being.  

This week we hear from Sam Castinien and Trevor Ward on major developments in Free Speech law in the military.  The issue is raised in United States v. Smith, which was decided by CAAF on September 13, 2024.  We then hear from first-time contributor Nicole Herbers, who discusses the sticky wicket of objecting to the government's argument in a judge alone forum.  

Today we discuss the recent and significant case of United States v. Mendoza, where CAAF holds that evidence that a named victim lacked the capacity to consent due to impairment by drugs or alcohol, will not support a conviction for sexual assault without consent under Article 120(b)(2)(A).  This case will have a big impact on how sexual assault cases are charged and litigated going forward.  We also hear from Major Ciara Ryan on member instructions -- she provides great thoughts on being creative to ensure your client gets the instructions most favorable to the defense.  

In today's episode we discuss the CAAF decision in United States v. Strong, where CAAF creates a new definition of "seize" applicable only to electronic data for the offense of Prevention of Authorized Seizure of Property, Article 131e, UCMJ.  We then hear from Captain Fredericks on Article 37, UCMJ, Unlawful Influence.

In this, the last episode of Season 3, we discuss HVZ v. U.S., where CAAF found that MRE 513(e) gives patient's standing to the extent that they have a right to be heard on a defense motion to compel their mental health records regardless of whether the records are privileged under MRE 513.  We also hear from Lt Col Ghiotto who discusses the rule against hearsay and a couple of exceptions that defenders may want to consider.

In this week's episode we discuss United States v. Grijalva.  In this case the government had an Article 117a (wrongful distribution of intimate visual images) offense but didn't think it could prove a direct and palpable connection to a military mission or the military environment (element 4).  So it dropped that element and re-packaged it as an offense under the general article, Article 134.  The CAAF applies the preemption doctrine but also takes a stroll through the First Amendment -- and both have consequences for defense counsel.