Litigator Libations

Send us Fan Mail The Judge Advocate General for the Navy certified two questions to the Court of Appeals for the Armed Forces following the N-MCCA's denial of a victim's petition for a writ of mandamus.  The CAAF doesn't answer either question, but makes it clear that a victim does not have standing to challenge how, or whether, her alleged assailant is prosecuted.  We also hear fro...

Send us Fan Mail In this episode we discuss the CAAF case of United States v. Palik, which involves an claim of ineffective assistance of counsel based on a failure to raise an R.C.M. 914 (Jencks Act) motion in hopes of forcing the trial court to disregard the testimony of the complaining witness.  The case gives us an opportunity to discuss both IAC and R.C.M. 914.  We also hear from Major Ciara...

Send us Fan Mail In today's episode we discuss United States v. Driskell, where the CAAF held that a military judge's dismissal for want of jurisdiction - after the presentation of evidence and findings argument - was essentially an acquittal and therefore no rehearing was authorized under the Double Jeopardy Clause in the United States Constitution.  We also briefly discuss the Hasan an...

Send us Fan Mail In this episode we discuss the recent C.A.A.F. case of United States v. Ramirez, which comes close to addressing the constitutional due process requirements in voir dire when the accused is charged with a crime of violence, the victim is of a different race than the accused, and the defense requests racial bias questions in voir dire.  The case is a near miss - but interesting non...

Send us Fan Mail In this week's episode we stay very practical and have three presenters!  I start with a discussion about the recent AFCCA case of In re RW, where the court granted a victim's writ based on it finding that the military judge erred by requiring the mental health treatment facility to provide patient records so an attorney outside of the treating organization for a review...

Send us Fan Mail In today's episode we discuss an interesting case from the Army Court of Criminal Appeals that involved successive courts-martial resulting in the ACCA dismissing the subsequent Charge and its Specification because the Convening Authority abused his discretion in not referring all known offenses to the original court-martial.  The subsequent prosecution amounted prosecutorial...

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 methamp...

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...

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...

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.  Happ...

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...

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 R...

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...

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.  Specifica...

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 h...

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 exce...

Send us Fan Mail 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 suffere...

Send us Fan Mail 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...

Send us Fan Mail 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 gr...

Send us Fan Mail 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...

Send us Fan Mail 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 rep...

Send us Fan Mail 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...

Send us Fan Mail 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...

Send us Fan Mail 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 expecta...

Send us Fan Mail 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...