Criminal Law Department Presents

In this episode, we review the discovery and disclosure rules under R.C.M. 701 and R.C.M. 703, highlighting the tension between a victim's Fourth Amendment privacy rights in digital evidence and the accused's statutory right to discovery. We examine whether the military judge erred in denying defense access to a complete forensic data extraction of the victim's cell phone when the government held...

In this episode, we review the residual hearsay exception under M.R.E. 807 and the Sixth Amendment right to present a complete defense under Chambers v. Mississippi. We examine whether the military judge arbitrarily excluded a third party's recorded confession and apology letter to the victim's parents, and whether admitting that evidence for impeachment alone infringed a weighty interest of the a...

In this episode, we review the hearsay exception for prior consistent statements under M.R.E. 801(d)(1)(B) and the Frost and Finch factors that govern each subsection. We examine whether a victim's statements to law enforcement were admissible to rehabilitate credibility attacked on the “other ground” of faulty memory in Ruiz, and of inconsistency in Brown, along with CAAF's clarification of Ayala...

In this episode, we review the CAAF's ruling that a defense counsel's statement of “no motions” at arraignment constituted an affirmative, express waiver of a multiplicity challenge to duplicative Article 128b domestic violence specifications. We examine the tension between waiver and forfeiture, the majority's reliance on the absence of an ineffective assistance of counsel claim, and the dissent'...

In this episode, we review whether a suspect's statement, “I would like to speak to a lawyer, but um, yeah,” was an unequivocal invocation of the right to counsel under Article 31, UCMJ principles. We examine how the Court of Appeals for the Armed Forces applied Edwards v. Arizona and Davis v. United States, and how the majority and dissent split over whether the words “but um, yeah” were meaningl...

In this episode, we review the interplay between unlawful command influence (UCI) and a plea agreement's waiver of all waivable motions. We examine whether a “waive all waivable motions” provision, confirmed through a judge's colloquy, forecloses appellate review of a UCI claim even when the accused later alleges his defense counsel misadvised him about its effect. We provide takeaways on the impo...

In this episode, we review the notice requirements for an offense of conduct unbecoming an officer under Article 133.  We examine preemption rules and whether an accused has fair notice that kissing a junior enlisted trainee constitutes conduct unbecoming an officer.  We provide takeaways on drafting specifications and preserving issues for appeal. Learn more about The Quill & Sword series of podc...

In this episode, we discuss the meaning of the term transaction under Rule for Courts-Martial 1002(d)(2)(B)(i). We review when sentences to confinement for multiple offenses should run concurrently or consecutively. We also address forfeiture and the plain error standard of review. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at https://tjaglcs.army.mil/thequi...

In this episode, we review the sufficiency of evidence to sustain a conviction of wrongful use of a controlled substance under Article 112a, UCMJ. Specifically, we address the standard required to trigger the permissive inference to prove the wrongfulness element and the relevance of expert testimony where the government does not admit the underlying lab results. We further discuss the CAAF’s clar...

In this episode, we sit down with George Brauchler, the 53rd Kenneth J. Hodson Lecturer in Criminal Law at The Judge Advocate General’s Legal Center and School. Mr. Brauchler is the elected District Attorney for Colorado’s 23rd Judicial District and a recently retired Colonel in the Colorado National Guard and the Colorado Army National Guard’s first Military Judge. During our discussion, Mr. Brau...

In this episode, we review the authority of Courts of Criminal Appeals to grant appropriate relief for errors after entry of judgment. We discuss whether a CCA can provide backpay as a lawful remedy for illegal post-trial confinement. We cover appellate discovery standards and highlight important diligence requirements for government counsel. Learn more about The Quill & Sword series of podcasts b...

In this episode, we discuss discovery obligations in the context of an innocent ingestion defense to an allegation of wrongful use of a controlled substance under Article 112a, UCMJ. We review the standard under Brady v. Maryland and offer practical takeaways for trial and defense counsel. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at https://tjaglcs.army.mi...

In this episode, we address victim impact statements under R.C.M. 1001(c). Specifically we discuss the inclusion of uncharged misconduct by the accused in the unsworn statement and whether it constitutes victim impact. We offer takeaways for how trial and defense counsel can apply this rule in practice. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at https://t...

In this episode, we examine for cause challenges to panel members, specifically an implied bias challenge based on comments regarding an accused that retains civilian defense counsel. We discuss the liberal grant mandate and provide takeaways for practitioners during voir dire to assess issues of bias and potentially rehabilitate ambiguous responses. Learn more about The Quill & Sword series of po...

In this episode, we review the interpretation of possession, custody, or control under R.C.M. 701, where defense counsel requests access to the data within the seized phone of the accused that the government is unable to unlock. We clarify the intersection between discovery rules and the Fourth Amendment, discuss the distinction between seizure of an electronic device and the data contained within...

In this episode, we discuss the scope of sentence appropriateness and whether Courts of Criminal Appeals may consider the terms of a plea agreement in their review. We offer practical considerations for trial practitioners in drafting plea agreements in light of the CAAF’s opinion. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at https://tjaglcs.army.mil/thequi...

In this episode we discuss the legal and factual sufficiency of evidence considered in Article 120(b)(2)(A) – sexual assault without consent cases in light of CAAF’s recent Mendoza and Casillas opinions. We discuss at length the three legal principles established in Moore to resolve the certified question in all three cases – whether the Air Force Court of Criminal Appeals erred in applying United...

In this episode, we address providency and the applicability of permissive inferences in guilty pleas. We also discuss practical considerations for counsel in making charging decisions, preparing clients for the guilty plea colloquy, and draft stipulations of fact. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at https://tjaglcs.army.mil/thequillandsword. The Q...

In this episode, we review the application of confinement credit under United States v. Pierce to cases involving segmented sentences. We also discuss practical takeaways for charging decisions and advising clients. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at https://tjaglcs.army.mil/thequillandsword. The Quill & Sword show includes featured episodes from...

In this episode, we discuss changes in the detailed military judge and distinctions between reassignment, removal, disqualification, and recusal. We examine how these distinctions affect the applicable prejudice test for alleged errors during appellate review. We also welcome ROTC Cadets Reagan Aylor and Taos Dye, interns at TJAGLCS. Learn more about The Quill & Sword series of podcasts by visitin...

In this episode we discuss the jurisdiction and authority of the Courts of Criminal Appeals and the Court of Appeals for the Armed Forces to address alleged errors in post-trial actions that indicate firearms restrictions under 18 U.S.C. § 922. We cover distinctions from the CAAF’s Williams opinion from last term, timing for when the judgment is entered into the record, and the specific authority...

In this episode we examine the admission of uncharged acts occurring months after the alleged offenses for the purpose of common plan or scheme under Military Rule of Evidence 404(b). We discuss application of the Reynolds test, the decision in Hyppolite on common plan or scheme, the Wet Bandits from the 1990 American Christmas comedy film Home Alone, prejudice in appellate review, and distinction...

In this episode we discuss the constitutionality of Article 120 and distinctions from CAAF’s recent Mendoza opinion. We also cover the other granted issues addressing questions of legal sufficiency, panel member bias, special instructions on intoxication and consent, and collateral consequences under 18 U.S.C. § 922. Learn more about The Quill & Sword series of podcasts by visiting our podcast pag...

In this episode, we discuss the legal sufficiency and notice requirements for attempt offenses under Article 80. We additionally talk about plain error review and interpretation of a charge and specification based on the conduct of the parties at trial. We also welcome Macy Peele, a summer intern at TJAGLCS. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at http...

In this episode, we discuss the authority of CAAF to review factual sufficiency determinations of Courts of Criminal Appeals. We further address variance involving dates of the charged offense and changes to the specifications under R.C.M. 603. We also welcome LTC Michael Scaletty, Chair, Criminal Law Department, and Jackson Trout, a summer intern at TJAGLCS. Learn more about The Quill & Sword ser...