Consent Under Article 120: The Offense Date Matters The older discussion of “wrongful sexual contact” and paragraph 45b(13) concerns the version of Article 120 governing conduct from 1 October 2007 through 27 June 2012. It is not the current framework. The rules changed again for conduct from 28 June 2012 through 31 December 2018, and […]
United States v. Sutton , 68 M.J. 455 (C.A.A.F. 2010) the accused, while home alone with his two step-daughters, asked his 10-year-old to lift her shirt and show him her chest, offering her $20 to do so. For this misconduct, the accused was charged under Article 134. At trial, the parties and a military judge […]
Hearsay Mar 10, 2011 Post Crawford v. Washington, 541 U.S. 36 (2004), hearsay was categorized as either testimonial or non-testimonial. “Testimonial” means a statement made under circumstances that would cause a reasonable witness to believe the statement could be used later at trial. If testimonial, then the declarant should be made available for trial to […]
Your court martial defense lawyer should, if possible, argue that a lab report is testimonial. If the lab report is testimonial, then the government needs to have the report’s creator testify. To prove the testimonial nature of the report, the defense should put in defense discovery requests to probe how routine or random the lab […]
The Three-Part Test To determine whether a statement is testimonial, CAAF used a three-part test in U.S. v. Rankin, 64 M.J. 348, 352 (2007). CAAF considered the following: Was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry? Did the statement involve more than a routine and objective […]
“Mistake of Fact” Defense Feb 11, 2011 In U.S. v. Guest, 46 M.J. 778, 781 (Army Ct. Crim. App. 1997) the court held that a mistake of fact defense requiring the mistake to be both honest and reasonable may be available under the circumstances of an AWOL charge. In U.S. v. Gonzalez, 42 M.J. 469, […]
Desertion and Absent Without Leave Intent is an important factor in distinguishing “desertion” from “absent without leave” (AWOL). Article 85 UCMJ deals with desertion while Article 86 UCMJ deals with absent without leave. The intent to remain away permanently, avoid hazardous duty, or shirk important service distinguishes desertion from absent without leave. Remember, the government […]
Admission of Constitutionally Required Evidence Military Rule of Evidence (MRE) 412 prohibits the admission of evidence offered 1) to prove that an alleged victim of a non-consensual sex offense engaged in other sexual behavior, or 2) to prove an alleged victim’s sexual predisposition. MRE 412(b)(1) delineates the exceptions to this general rule. Most of the […]
Evidence of a Victim’s Sexual History or Predisposition 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 […]