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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!

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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.  

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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).  

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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.  

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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.  

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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.  

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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.  

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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.   

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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.  

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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.