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In this episode Sam Castanien and Trevor Ward return with a great discussion on Free Speech law in military justice - particularly in regard to the possession of obscene cartoon, anime, or computer generated images that the government attempts to charge as child pornography.  Making her Litigator Libations debut, is Rebecca Saathoff providing important information on how courts-martial and appellate review can impact your client's online presence.  Two great discussions from the good folks at Appellate Defense!

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Today we discuss the CAAF case of United States v. Campos, decided on February 19, 2025.  It is an important case for defense counsel because the court provides important distinctions between what might be admissible as aggravation evidence in the prosecution's sentencing case, but is improper in an unsworn victim impact statement.  We then hear from Major Ciara Ryan who discusses how to object when the government notices M.R.E. 404(b) evidence, but the evidence they seek to admit for a relevant non-propensity purpose is already coming in to prove a separate charged offense.  

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This week we discuss United States v. Davis, where the majority at CAAF held that where a military judge removes himself from a case to avoid granting a defense motion, and then details a different judge to the same case in hopes of the motion being denied, was not structural error and, although wrong, did not prejudice the appellant.  We then hear from Captain John Fredericks on a recent trend of represented victims refusing to appear at MRE 412 or MRE 513 motion hearings and he provides advise on how to ensure those witnesses appear and provide testimony necessary to resolve the motion.  

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In this episode we discuss the CAAF case of United States v. Shelby, which was an Article 62 appeal of the military judge dismissing an abusive sexual contact charge with prejudice.  The CAAF held that the military judge abused his discretion by applying the cumulative error doctrine at the trial level.  We then pass on a hot take from Captain Riley Vann, who educated me on the Boyfriend Loophole to firearm prohibitions upon conviction of a misdemeanor crime of domestic violence.  Finally, we once again here from Lt Col Mouakar who provides an excellent discussion on the importance of early investigation into mitigation evidence, how to conduct that investigation, and how to use the information gained.  

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In today's episode we discuss the Air Force Court of Criminal Appeals case of United States v. Rocha, which considers the constitutional protections, as set out in Lawrence v. Texas, to private, secret, solitary masturbation with a child-sized sex doll.  Spoiler alert:  The Constitution Wins!  We then provide some comments on changes to the Manual for Courts-Martial as a result of the 2025 National Defense Authorization Act and Executive Order 14,130.  

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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.  

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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.

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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.  

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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.  

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[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.