Litigator Libations

Send us Fan Mail This episode discusses the first opinion of the term from CAAF - US v Moratalla, where CAAF demonstrates that criminal law attorneys do not understand secured transactions.  The episode then goes on to discuss the often abused hearsay exception - excited utterances.  Happy listening!

Send us Fan Mail In November 2021, the Air Force's Interpersonal Violence Task Force issued its report regarding the way the Air Force handles allegations of various forms of interpersonal violence, ranging from verbal harassment to physical violence.  This episode discusses how the report may assist defense counsel in negotiating alternative dispositions in certain cases.  The advocacy porti...

Send us Fan Mail This episode discusses an Article from The Army Lawyer regarding the No-BCD Special Court-Martial and finally provides the fifth part of our five-part series on cross-examination with a prior inconsistent statement, in which we discuss proving up the prior statement.  

Send us Fan Mail In this episode I provide a mea culpa and seek to course-correct when it comes to motions to dismiss for failure to state an offense.  Recently the President has sought to render these motions non-jurisdictional but the RCMs still allow it to be raised any time prior to adjournment.  Because I thought the motion was jurisdictional, I agreed with the judiciary that defense counsel...

Send us Fan Mail This episode discusses the first (and perhaps only) published opinion of the Air Force Court of Criminal Appeals in 2021 -- United States v. LePore.  In that case the full court met to decide they had no power to decide the issue of whether the Appellant's conviction triggered the firearm prohibitions of 18 U.S.C. 922(g).  The episode (at 14:30) then goes on to discuss the ru...

Send us Fan Mail In United States v. Willman, the CAAF found that certain evidence could be considered by the CCA for one purpose but that the same evidence was not within the record for any other purpose (the takeaway is to ensure as much as possible gets in the record).  The episode then turns to what is often the most enjoyable part of the impeachment with a prior inconsistent statement -- the...

Send us Fan Mail The collection of DNA from Airman and Guardians accused of committing an offense under the UCMJ; and the crediting step of the impeachment by prior inconsistent statement.  

Send us Fan Mail In this out-of-order episode, I discuss two CAAF cases (US v. McPherson and US v Adams) that both apply the literal wording of Article 43, UCMJ, to find that a five-year statute of limitations applies to some pretty egregious offenses.  The cases demonstrate how following the law can be challenging when you would prefer a different result.  Those cases are relevant to the Air Forc...

Send us Fan Mail Is it lawful to include a mandatory punitive discharge in a Plea Agreement, even when Congress hasn't determined that a punitive discharge is required for that offense?  The second chapter addresses the "confirm" step in the impeachment of a witness using a prior inconsistent statement.  

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Send us Fan Mail In United States v. Steen, the appellant was charged with introduction and distribution of marijuana.  At trial, the government sought to admit text messages wherein the appellant sought to acquire marijuana for personal use.  The text messages were created after the alleged offense but the government argued it was, under MRE 404(b), admissible to show the appellant had a plan to...

Send us Fan Mail This is the first episode!  (So allow some grace.)  The episode discusses United States v. Tyler, Crim. App. No. 29572, C.A.A.F., April 26, 2021, which held that the unsworn victim impact statement is not evidence but it may, nonetheless, be commented on by trial counsel in sentencing argument.  The court also stressed the role of the military judge as gatekeeper to ensure that th...