Litigator Libations

Send us Fan Mail

In this week's episode I discuss Smith v. Arizona, which is a case currently pending before the Supreme Court of the United States.  The Court heard argument on the case on January 10, 2024.  The issue is how the Confrontation Clause may limit expert witness testimony.  Specifically, in Smith an expert testified that the substances seized from Smith were marijuana and methamphetamine based on his review of another expert's report and notes.  The expert also testified as to the steps the non-testifying expert took, her process, and the results.  Was Smith denied confrontation?  We also hear from Major Ciara who gives a very helpful discussion on how to approach the sentencing case - even for those challenging clients.  

Send us Fan Mail

In this week's episode - the first in 2024 - we discuss a case from the Navy-Marine Corps Court of Criminal Appeals - United States v. Harborth.  The case is a must-read for defenders because it addresses the special possessory and privacy interests applicable to electronic digital devices, the Constitutional interests regarding seizure as distinct from a search, and how even a lawful seizure can become unconstitutional when the government unreasonably delays in its search of the seized device.  We also hear from John Fredericks -- ADC at Davis Monthan AFB -- with an excellent walk through the state of the law regarding the federal firearm prohibitions set out 18 U.S.C. 922, and how to ensure your client's Second Amendment rights are protected.

Send us Fan Mail

In the last episode of 2023, Trevor Ward discusses the state of the law regarding who might qualify for victim status under Article 6b, despite having been a coconspirator in the offense.  We also hear from Allen Abrams, who accepted the challenge to describe how defense counsel might use a newspaper article to impeach a government witness.  He walks us through how we can use the article to prepare for trial as well as specific methods of using the article to impeach the witness on the stand.  Thank you to both Allen and Trevor for wrapping up 2023 with an interesting and helpful pod!

Send us Fan Mail

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!

Send us Fan Mail

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.  

Send us Fan Mail

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).  

Send us Fan Mail

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.  

Send us Fan Mail

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.  

Send us Fan Mail

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.  

Send us Fan Mail

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.