Litigator Libations

Send us Fan Mail 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.  

Send us Fan Mail In this week's episode we break down United States v. Valentin-Andino, which is a published opinion from the Air Force Court of Criminal Appeals.  In it, the court clarifies that a deferment request is not a request for clemency, and then relies on fairness and procedural due process to find that, like clemency, where a convening authority considers matters submitted by a vic...

Send us Fan Mail In this week's episode we discuss the recent case of United States v. Pyron, which was decided by CAAF on 17 January 2023.  The case addresses an exception to the general rule that the government may use an accused's testimony at a prior court-martial at a subsequent rehearing; and then finds the exception does not apply.  For our advocacy section, Major Allen Abrams dis...

Send us Fan Mail In today's episode Major Allen Abrams discusses the unpublished Air Force case of United States v. Brown -- specifically discussing trial counsel's improper argument in sentencing by invoking command policy for purposes of increasing the punishment of the convicted Airman.  We note that the case cite to United States v. Greenwood was meant to be to United States  v. Gate...

Send us Fan Mail In this episode we discuss the recent CAAF case of United States v. Day, which declined a defense invitation to overrule its precedent and held "attempt to conspire" continues to be an offense under the UCMJ (even though most jurisdictions reject such an offense).  We then move into a discussion of effective presentation style, with Major Allen Abrams discussing the effe...

Send us Fan Mail In today's episode we will discuss some of the provisions of the FY23 NDAA.  At the time the Podcast was originally recorded the Senate had not yet passed the bill but, at the time of posting, it has--so disregard any discussion of potential changes to the bill.  In our advocacy portion, Major Allen Abrams will discuss the highs and lows of pitch, which is part three of his p...

Send us Fan Mail In this episode Darrel discusses the two Air Force Court of Criminal Appeals opinions that were published in 2022:  U.S. v. Anderson and U.S. v. Heppermann.  The first case deals with waiver and the second case focuses on statutory construction; although the legal issue was legal and factual sufficiency.  We then turn to our advocacy portion where Major Allen Abrams discusses, and...

Send us Fan Mail In this episode you will hear Darrel Johnson discussing the CAAF case of United States v. Black, which was an Article 62 appeal of the trial judge's suppression of evidence seized after a consent search, but where that consent was sought based on an illegal search of the appellant's cellular phone.  Turning to our advocacy portion, Major Allen Abrams provides an introduc...

Send us Fan Mail In this week's episode Major Allen Abrams discusses an a doctoral thesis that focuses on the impacts on service member when the member is court-martialed on weak charges and then discusses word choice at court-martial and how getting rid of coordinating conjunctions may improve your story-telling.  

Send us Fan Mail In this episode we discuss United States v. Bench, a CAAF cases that involves the remote testimony of a child witness, but the real issue is whether the Confrontation Clause is offended when trial counsel deceives the child witness by falsely informing them that the accused is not present and will not hear the child's testimony.  We then turn to Military Rule of Evidence 608(...

Send us Fan Mail Season 2 of Litigator Libations kicks off with a discussion of US v. Nelson a case where CAAF resolves nothing.  The issue is the proper remedy for an Article 31 rights violation but although three judges agreed the NMCCA should be affirmed, they could not agree as to why -- no precedential value but an interesting issue.  We next discuss the science and art of voir dire.  Welcome...

Send us Fan Mail In this week's episode we discuss the recent case of United States v. Palacios Cueto, which is a case where the appellant attacked every attorney at trial:  IAC claims for the defense and prosecutorial misconduct for the government.   All to no avail but an interesting case nonetheless.  We then discuss using (or, more accurately, not using) a lectern during arguments at tria...

Send us Fan Mail This episode comes a day late but contains some great information on the newly published DAFI 36-3211, Military Separations, as well as closing out the discussion on Prior Consistent Statements.  Thank you, again, Major Allen Abrams for the helpful info!

Send us Fan Mail In this week's episode Allen Abrams returns to educate us on the Supreme Court downgrading Miranda warnings from a Constitutional protection to a prophylactic measure; he then begins our journey down the path to effective use of prior consistent statements.  Enjoy!

Send us Fan Mail In this week's episode we briefly discuss a writ of prohibition issued by the Army Court of Criminal Appeals ordering the military judge in United States v. Dial to proceed with trial without instructing the members that a unanimous verdict is required and allowing conviction of the sex offenses upon agreement by three-fourths of the members.  We also discuss the Court of the...

Send us Fan Mail In this episode Major Allen Abrams highlights some SCOTUS petitions that, although not military cases, may have an impact on military justice.  He then discusses United States v. Tate, where a gaff on the part of the court reporter resulted in a complete loss of a day of trial.  The issue was whether the trial judge's remedy was proper (it wasn't).  Major Abrams then wal...

Send us Fan Mail In this episode Major Allen Abrams breaks down two recent cases from the Court of Appeals for the Armed Forces.  In  Nelson  the issue is whether the appellant voluntarily unlocked his cellular phone when he did so under a mistaken belief that, because the government had a search authorization, he had no choice but to unlock the phone.  In  Horne  the court addressed a UCI issue c...

Send us Fan Mail In this episode Major Allen Abrams discusses the recent court-martial of Major General Cooley (and the no-longer-a-sex-offense offense) as well as CAAF's recent decision in United States v. Edwards, which examines whether a prosecutor-created video with images and acoustic music can qualify as a victim statement.  Finally, Major Abrams breaks down how to lay a foundation for...

Send us Fan Mail In this episode we discuss CAAF's interpretation of the scope of the "duty-to-report" exception under MRE 513 and provide a brief discussion of the foundation for establishing that the witness has the requisite personal knowledge under MRE 602.  

Send us Fan Mail In this episode we discuss United States v. Simmons where the CAAF found that, based on the facts of the case, expanding the charged time frame by over nine months was a major change, and therefore prohibited under RCM 603.  We also discuss potential strategies for defense counsel when an important witness refuses to sit for an interview with defense counsel.  

Send us Fan Mail In this week's episode we discuss a 1-2-2 opinion from CAAF that addresses, but does not resolve, whether sexual abuse of a child, which may be committed by a lewd act done "in the presence of" the child, requires the child to be aware of the conduct.  We then discuss the "learned treatise" exception to the prohibition on hearsay.  

Send us Fan Mail This week Major Ryan Crnkovich steps in with an outstanding examination of unanimous verdicts in courts-martial after the Supreme Court's watershed case of Ramos v. Louisiana.  Major Crnkovich breaks down this complex issue with a walk through the significant case law and some excellent analysis.  

Send us Fan Mail In this episode we discuss the first case out of the Court of Appeals for the Armed Forces to discuss the new Article 117a (wrongful broadcasting of intimate images) and we discuss questioning witnesses in a way that conveys that we dispute their testimony without confronting the witness (and thereby allowing them to repeat or bolster their narrative).  Happy Listening!  

Send us Fan Mail In this episode we discuss the case of Hemphill v. New York, where the Supreme Court held that an accused did not waive his right to confront an absent witness when he offered  evidence that implied the absent witness was the true perpetrator of the offense.   We then discuss how to respond when your witness refuses to remember a fact of consequence despite having their memory ref...

Send us Fan Mail In this episode we discuss the case of United States v. Quezada, where the appellant was convicted of a sexual assault (Article 120) and of false official statement (Article 107) for denying that the sex act that amounted to the sexual assault occurred.  The issue is whether the "false exculpatory statement" instruction undermined the appellant's presumption of inno...