Litigator Libations

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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.  

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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!

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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!

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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.  

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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.  

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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!  

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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.

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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.  

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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.  

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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.