Blog Posts in January, 2011

  • Evidence of a Victim's Sexual History or Predisposition

    || 31-Jan-2011

    In United States v. Dorsey, 16 M.J. 1 (C.M.A. 1983) the Court of Military Appeals (CMA, now CAAF) directly dealt with the issue of when evidence of a victim's sexual history or predisposition is required by the Constitution to be admitted. Citing Davis and Valenzuela-Bernal, the CMA echoed the Supreme Court's sentiment that if evidence of an alleged victim's sexual history is ...
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  • When Evidence is Constitutionally Required

    || 27-Jan-2011

    Three cases - United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), Davis v. Alaska, 415 U.S. 308, and Rock v. Arkansas, 483 U.S. 44 (1987) - form the core of the Supreme Court precedent that defines when evidence is constitutionally required. In all these cases, the Supreme Court held that a trial court must admit defense evidence if it is 1) relevant, 2) material, and 3) favorable to the ...
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  • The Supreme Court's rulings in United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) and Davis v. Alaska, 415 U.S. 308 (1974) provide insight into the manner in which the court will analyze the issue of the admission of evidence the exclusion of which would violate the constitutional rights of the accused. While Valenzuela-Bernal did not involve the application of state or federal rape ...
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  • Voluntary Intoxication and Sexual Assault

    || 20-Jan-2011

    Given that most military sexual assault and rape cases somehow involve alcohol or being drunk, we get countless questions on whether being drunk is a defense to sexual assault. Simply put, "voluntary intoxication" is NOT a technical defense to a general intent crime. According to Note 12 of the new Military Judge's Benchbook instructions, voluntary intoxication is not relevant to a mistake of fact ...
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  • Alleged Victim Was Substantially Incapacitated Due to Alcohol Consumption

    || 14-Jan-2011

    If you are charged with aggravated sexual assault while the alleged victim was substantially incapacitated due to alcohol consumption and you contend that the victim consented, then at the time of trial, the military judge (MJ) may consider two issues: Whether the Military Judges' Benchbook at Note 10 and Note 11 of the new Article 120, UCMJ instructions provides an appropriate or lawful ...
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  • Sex Offender Registration Advice Form

    || 11-Jan-2011

    The use of a sex offender registration advice form is required by U.S. v. Miller, 63 M.J. 452 (C.A.A.F. 2006) and DODI 1325.7. Prior to trial, if you are charged with any offense that requires registration, including sexual assault, rape or Article 120 UCMJ offenses, your military defense attorney must advise you of the consequences and requirement to register as a sexual offender.Your court ...
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  • Registration as Military Sex Offender

    || 7-Jan-2011

    Under Federal law, DoD Instruction 1325.7, and Army Regulation 27-10 (sister services have similar Regulations), those who have been convicted of any of the following offenses must register with the appropriate authorities in the jurisdiction (State, District of Columbia, Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the United States Virgin Islands, and Indian ...
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  • Advice on Sex Offender Registration

    || 4-Jan-2011

    State and territorial laws are diverse. If your military defense lawyer is uncertain where you may reside, carry on a vocation, or go to school, he will likely (and justifiably) be very cautious when giving advice that an offense is not covered or the exact procedures to register other than "check with local authorities for registration requirements." If the sex offense is not listed on ...
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