Litigator Libations

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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.  

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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.  

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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.  

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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.

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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.

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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.  

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In today's episode we hear from Lt Col Tony Ghiotto (a.k.a Professor Ghiotto) on the recent Supreme Court Case of Diaz v. United States, which speaks to how close an expert may come to providing an opinion on a ultimate issue (such as whether the accused held a specific intent).  It is an excellent discussion that includes how the law has developed over the years and why.  We also hear, once again, from Major Ciara Ryan, fresh off her successful defense of a client charged with murder.  She tells us how she and her defense team utilized RCM 913(c) to orchestrate a field trip for the entire court to visit the alleged crime scene.  A great episode from two outstanding contributors!

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It is Case-A-Palooza!  In this episode we discuss two CAAF cases and then quickly touch on two SCOTUS cases.  United States v. Keago is a CAAF opinion holding that a military judge abused her discretion by failing to grant two defense challenges for cause at voir dire.  It preserves the liberal grant mandate and provides helpful guidance to defenders.  United States v. Metz holds that law enforcement agents did not believe, nor should they have reasonably believed, that Corporal Metz was a suspect in need of rights advisement despite going to his barracks to interview him after discovering a fire they believed was arson, learning that it was likely started with someone who had a key to the building, Metz had a key to the building, Metz was disgruntled and two items in the building that were specifically targeted by fire belonged to his supervisor, and his supervisor told the investigators that if anyone started the fire, it was Corporal Metz...not a suspect!  The case also holds that Corporal Metz's consent to search his room was not the fruit of his illegal apprehension occasioned immediately prior to the consent.  We then turn to SCOTUS where Smith holds that a testifying expert who parrots the facts and conclusions proffered by a non-testifying expert as the basis for his opinion, amounts to hearsay and if the statements are testimonial they also violate the Confrontation Clause.  In Rahimi, the Court upholds a federal law prohibiting the possession of firearms by a person subject to a domestic violence protective order as consistent with the history and tradition of firearm regulation in the United States.