Litigator Libations

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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.  

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In this week's episode we discuss United States v. Kim, a recent CAAF case that speaks to unique aspects of pleading guilty to offenses speak to potentially constitutionally protected conduct, such as viewing legal pornography in the privacy of your home.  We next discuss issues to consider when conducting the required hearing on the admissibility of defense proffered MRE 412 evidence when the government does not oppose the admission of the evidence.  

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In this week's episode we  catch up on some CAAF cases, including United States v. King (excusing a member after assembly), United States v. Vargas (standard for selecting a remedy for discovery violations), United States v. Behunin (sentence comparison in "closely related" cases), and United States v. McAlhaney (CCA standard of review regarding the content of a reprimand).  Major Allen Abrams then brings us a discussion of prior inconsistent statements in situations where it gets complicated because there are a number of inconsistencies in a single assertion.  

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In this week's episode we discuss the recent unpublished opinion of United States v. Lara, which examines the advice defense counsel must provide regarding the potential for sex offender registration under the Sex Offender Notification and Registration Act (SORNA).  In the advocacy portion, Major Allen Abrams discusses how to work with combative witnesses on cross examination.  

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In this episode we seek to recruit a producer of Litigator Libations and then discuss the recent CAAF case of United States v. Lattin.  United States v. Lattin is a Fourth Amendment case that hones in on the exclusionary rule and demonstrates the wide latitude military judge's have in admitting evidence seized in violation of the Accused's constitutional rights.  We then discuss some concepts to keep in mind as you plan for keeping notes and tracking the multitude of things that happen at trial.  

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In today's episode Darrel discusses (at length) the issue of whether a client has a legitimate privacy interest in a forensic copy of electronic data seized from the client's electronic device, such as a cellular phone or laptop computer.  In McDonnell v. Maryland, the Maryland Court of Special Appeals held that the appellant in that case rekindled his reasonable expectation of privacy in a mirror-image copy of his laptop's hard drive when he revoked consent to search.   Major Allen Abrams then discusses when and how you might want to consider using open ended questions during your cross-examination.  

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In this week's episode Major Allen Abrams discusses United States v. King, a recent case from the Court of Appeals for the Armed Forces.  The case conveys the importance of attention to detail when it comes to the proper excusal of a court-martial member after assembly.
In the advocacy portion, Major Abrams discusses options for dealing with a witness on cross-examination who are giving nonsense answers.

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In this week's episode we discuss the recent C.A.A.F. opinion of United States v. St Jean, which analyzed the admissibility of evidence under M.R.E. 412.  In our advocacy portion, we discuss the use of a prior conviction for purposes of demonstrating the witness's poor character for truthfulness.