Litigator Libations: Recent Episodes
Darrel-the-DCAP
The Air Force DCAP providing updates and tips on defensive litigation in military justice including discussing recent appellate decisions and advocacy tips.
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In the final episode of the season, Sam and Trevor cover two cases. First, Chatrie v. United States, __ U.S. __, No. 25-112, 2026 U.S. LEXIS 2878 (June 29, 2026), a recent Supreme Court case covering geofence warrants. There, the majority held that an individual has a reasonable expectation of privacy in records about his or her cellphone location, relying heavily on Carpenter v. United States, 585 U. S. 296 (2018). The Government needs a warrant when demanding such information, even from third parties. See United States v. Miller, 425 U. S. 435 (1976); Smith v. Maryland, 442 U. S. 735 (1979). Both Sam and Trevor think this case allows for broader challenges to cellphone searches, while also emphasizing how this case provides a good overview of Fourth Amendment jurisprudence starting with Katz v. United States, 389 U. S. 347 (1967). Ultimately, the Supreme Court remanded for whether the warrant in Chatrie’s case was valid, which could implicate the good faith exception later on (see Episode 110, The “Bad Faith” Exception, for a refresher).
Second, the duo cover United States v. Bass, __ M.J. __, No. 25-0149, 2026 CAAF LEXIS 544 (C.A.A.F. June 24, 2026), a fractured Court of Appeals for the Armed Forces (CAAF) decision on M.R.E. 404(b) and the permissive inference (see Episode 96, Did Downum Change the Permissive Inference?). Bass was charged with violating Article 92, UCMJ, for allegedly using hemp after testing positive for THC-8. The majority held that his positive urinalyses used in a previous court-martial resulting in an acquittal could not be admitted under M.R.E. 404(b) without a “repeated, fact specific innocent ingestion narrative linked to the same product or event.” The majority also held that the permissive inference under Article 112a, UCMJ, does not apply to hemp and hemp derived products. The logic the CAAF uses to find the permissive inference does not apply to hemp seems to be readily applicable to marijuana, something Trevor emphasized in Episode 112 when discussing Hemani, so keep challenging the permissive inference in marijuana cases!
After covering these cases, Sam signs off with a goodbye. She’s taking a new assignment and stepping away from the defense world, but, as always, she wishes everyone good luck with litigating their cases! We will miss her deeply.
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This week, Sam and Trevor tackle two Supreme Court cases and then welcome back Mr. Darrel Johnson, the creator of Litigator Libations, to discuss Article 93a, UCMJ. The duo begins with United States v. Hemani, __ U.S. __, No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026). Mr. Hemani was charged with being an "unlawful user" of a controlled substance (i.e., using marijuana every other day) while possessing a firearm, a violation of 18 U.S.C. § 922(g)(3). The Court determined that simply being an "unlawful user" was insufficient for the Government to disarm someone. Sam and Trevor believe that Hemani can be used to challenge the permissive interference in marijuana cases, prevent temporary disarmament following a urinalysis or confession of drug use, and inform plea agreements that could impact firearm rights.
The second case they cover is Hunter v. United States, __ U.S. __, No. 24-1063, 2026 U.S. LEXIS 2558 (June 18, 2026). Hunter deals with an appeal waiver contained in a plea agreement that prevented Mr. Hunter from appealing a seemingly unconstitutional sentence provision. The Court held that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice. Trevor and Sam discuss how Hunter can be used to push back against unfavorable plea terms and the concept of waiver overall.
Darrel takes this episode to the finish line by discussing his recent experience in litigating an Article 93a, UCMJ, case, specifically whether non-commissioned officers who are cross training and going through a "training program for initial career qualification" are "specially protected junior member of the armed forces." We welcome him and anyone else who would like to share their practice tips or military justice thoughts!
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This week, Sam and Trevor discuss United States v. RosarioMartinez, __M.J.__, 2026 CAAF LEXIS 485 (C.A.A.F. 2026), a case that troubles them both. There, after convicting the appellant, the senior panel member informed defense counsel that the panel had actually voted to acquit the accused. Apparently, the panel had misunderstood the voting instructions. Despite this, the CAAF declined to overturn the guilty verdict based on Mil. R. Evid. 606(b)(2)(C), which forbids courts from considering evidence from panel member deliberations.
Next, the duo dive into United States v. Galvin, 2026 CCA LEXIS 266 (A.F. Ct. Crim. App. June 5, 2026), which deals with the ongoing saga of whether a convening authority has the power to refer charges for conduct that OSTC determined was a "covered offense." Contradicting the Navy-Marine Court’s decision in United States v. Kruse, 86 M.J. 556 (N-M. Ct. Crim. App. 2026), rev. granted, CAAF 367 (C.A.A.F. 2026) (see episode 103), the Air Force Court ruled the convening authority lacked the ability to refer charges for conduct that OSTC said was a covered offense. Trevor maintains that the plain text of Article 24a, UCMJ, permits convening authorities to refer covered offense conduct to a court-martial, so long as the charged offense is a non-covered offense under Article 1(17), UCMJ. Sam—and the Air Force Court—rely on R.C.M. 303A(a) to argue that once the underlying conduct is determined to be a covered offense by OSTC (as it did here), then the conduct is covered and can only be referred to general or special court-martial by a special trial counsel. Sam recommends that if you are looking to file a motion to dismiss using Galvin, also cite R.C.M. 201(b)(3) and United States v. Henderson, 59 M.J. 350, 353 (C.A.A.F. 2004). Stay tuned for the CAAF's forthcoming decision in Kruse, which should resolve this issue!
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On this week's episode, Sam and Trevor tackle the CAAF's most recent decision on the good faith exception: United States v. Johnson, No. 25-0202/AF, 2026 CAAF LEXIS 464 (C.A.A.F. May 26, 2026). Before diving into that case, though, the duo discuss a new Supreme Court case on Batson challenges: Pitchford v. Cain, No. 24-7351, 2026 U.S. LEXIS 2296 (May 28, 2026). There, the Supreme Court reversed the Fifth Circuit, concluding that a criminal defendant has the right under Batson to have the trial judge fully analyze a Batson claim once a prima facie showing is made.
The two then turn to Johnson. There, the CAAF held that the good faith exception applies so long as a judge advocate advises law enforcement/the search authority that there is probable cause (even when there is no probable cause…). For this, the CAAF relied heavily on United States v. Perkins, 78 M.J. 381 (C.A.A.F. 2019), where the CAAF found the good faith exception applies whenever search authorities rely on the advice of government lawyers. The CAAF also relied on United States v. Leon, 468 U.S. 897 (1984), a Supreme Court case discussing the good faith exception, Mil. R. Evid. 311, which incorporates Leon's test, and United States v. Hernandez, 81 M.J. 432 (C.A.A.F. 2021).
This expansive view of the good faith exception draws the ire of both Sam and Trevor, as well as Chief Judge Ohlson, who writes a powerful dissent. Referencing the problems highlighted in United States v. Lattin, 83 M.J. 192 (C.A.A.F. 2023), Chief Judge Ohlson emphasized that “it is judicially necessary to penalize reckless or grossly negligent government behavior. . . . Otherwise, we should not be surprised if government investigators come to believe that there will be no negative consequences if they fail to comply with the rule of law.”
Please send your questions, comments, or concerns to litigator.libations@gmail.com. We look forward from hearing from you!
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Prior consistent statements strike again in this week’s episode as Sam and Trevor discuss United States v. Brown, __ M.J. __, 2026 CAAF LEXIS 418 (C.A.A.F. 2026).
With prior consistent cocktails in hand, the duo review the CAAF’s recent decision analyzing Mil. R. Evid. 801(d)(1)(B)(ii), the rule covering prior consistent statements offered on “other grounds.” A majority of the court found that a military judge did not abuse his discretion when he admitted a prior consistent statement from the complaining witness. This is because trial defense counsel attacked her credibility on “other grounds,” i.e., her “inconsistency,” thereby opening the door for admission of the prior consistent statements. As Sam and Trevor explain, this new(ish) rule under (B)(ii) runs the risk of having the exception swallow the rule. As the Chief Judge says in his concurrence, this is the “mischief” lurking behind the court’s Brown opinion.
During this episode, Sam and Trevor reference Episode 97, which covered United States v. Ruiz, 86 M.J. 75 (C.A.A.F. 2025), cert. denied, 146 S. Ct. 993 (2025). They also discuss the differences between Mil. R. Evid. 801(d)(1)(B)(i) and (B)(ii) and the specific applications of United States v. Frost, 79 M.J. 104 (C.A.A.F. 2019), United States v. Finch, 79 M.J. 389 (C.A.A.F. 2020), and United States v. Ayala, 81 M.J. 25 (C.A.A.F. 2021). They end with some helpful practice tips about how to limit the impact of Brown and a brief remark about utilizing the Benchbook instruction for inconsistent statements.
As always, please send any comments, questions, or concerns to litigator.libations@gmail.com
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This week, Sam and Trevor focus on United States v. Kershaw, No. 25-0177/AF, 2026 CAAF LEXIS 396 (C.A.A.F. Apr. 30, 2026), another divided Court of Appeals for the Armed Forces (CAAF) decision. Before diving into Kershaw, Sam briefly highlights that the portions of the Manual for Courts-Martial that were changed in Annex 2 of Executive Order (EO) 14103 apply to offenses that occurred after December 27, 2023 (the other Annexes in this EO have different effective dates). She discusses this effective date in the context of panel randomization under RCM 911. Specifically, the plain text applying this rule change contradicts the Military Judge's Electronic Benchbook and the Air Force Instructions (which themselves conflict too): neither arraignment nor referral date dictate when the new randomization rule applies. The offense date does. Thus, keep an eye out for which rules apply when; Annex 2's application is a little odd! If you disagree or have seen something different in practice, please let us know!
Following that discussion, the two walk through the Kershaw decision. In Kershaw, the CAAF holds that a Court of Criminal Appeals can affirm a conviction by using "variance," even when the trier of fact did not do so. The duo explain how CAAF's precedent, and the text, don't conform with that reading. They go on to provide some hopefully helpful tips for trial practitioners in light of the CAAF's new rule, but are cognizant of the new territory charted by the Kershaw decision.
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This week, Sam and Trevor discuss a new Court of Appeals for the Armed Forces (CAAF) case, United States v. Washington, No. 25-0044, 2026 CAAF LEXIS 353 (C.A.A.F. Apr. 13, 2026), and then feature a trial-level practitioner, Raquel Musconi, to discuss post-trial motions. Before jumping into both, the pair cover a quick update to United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 189 (A.F. Ct. Crim. App. Apr. 17, 2026). The Air Force Court of Criminal Appeals issued a new opinion, but not much changed. Check out Episode 100 for a refresher!
Sam and Trevor then discuss Washington. The CAAF found that the military judge abused their discretion when they determined the conduct leading up to the alleged sexual assault fell under Military Rule of Evidence 412. In coming to this conclusion, the CAAF seems to expand the realm of res gestae and the meaning of “surrounding circumstances” for sexual assault offenses. The CAAF also seems to cast doubt on United States v. Erikson, 76 M.J. 231 (C.A.A.F. 2017), the case analyzing false sexual assault claims under Rule 412. After resolving the Rule 412 issue, the CAAF tackled the military judge’s decision to strike most of the appellant’s testimony. The CAAF found that the military judge abused their discretion again, highlighting that this extreme remedy was not appropriate. While talking about this, Trevor references several state cases, including State v. Mende, 304 Ore. 18 (Or. Sup. Ct. 1987), to explain why the caselaw the Government and the dissent rely on is unpersuasive.
Raquel finishes the episode with post-trial motions, specifically related to confinement conditions.
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This week, Sam and Trevor cover two cases, United States v. Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343 (C.A.A.F. Apr. 8, 2026), and United States v. Talley, No. ACM 40828, 2026 CCA LEXIS 171 (A.F. Ct. Crim. App. Apr. 9, 2026). In Braum,another divided Court of Appeals for the Armed Forces (CAAF) found there was no prejudice when the Government refused to turn over the complaining witness’s cellphone extraction in its possession, custody, or control. The duo lament how the lead opinion did not answer whether the military judge erred by failing to order disclosure of the phone to the defense. But the two are hopeful that the CAAF may soon answer that question in United States v. Wicks, __M.J.__, No. 26-0062/AR, 2026 CAAF LEXIS 302 (C.A.A.F. Apr. 3, 2026).
In better news, the Air Force Court of Criminal Appeals found that the military judge abused his discretion by excluding evidence under Mil. R. Evid. 412 and set aside the finding of guilt for a sexual assault conviction. As Sam and Trevor explain, both cases deal with complaining witnesses turning their rights into a sword against the accused and what trial defenders can do to disarm such “chutzpa[dik]” witnesses. See Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343, at *28 (Ohlson, C.J., dissenting) (labeling the colloquial terms for the victim’s approach as “chutzpah”).
Note: We apologize for any audio issues you may notice during listening. We are aware of the microphone issues and are working to fix it for future episodes. As always, we welcome your questions, comments, and feedback at litigator.libations@gmail.com!
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The case you've all been waiting for! drumroll please
United States v. Rocha, No. 25-0157, 2026 CAAF LEXIS 254 (C.A.A.F. Mar. 16, 2026), the child-like sex doll case, is back and finally resolved! This week, Sam and Trevor spend most of the time breaking down the various opinions in Rocha. Spoiler alert: the CAAF affirms the lower court's decision to set aside the conviction, but perhaps not in the way you'd expect. While the CAAF doesn’t address the liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), Sam and Trevor do. While talking about liberty interests, they also discuss United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013).
After tackling what is sure to be the most controversial decision of the CAAF term, the duo turn to United States v. Hurtado, No. 25-0212, 2026 CAAF LEXIS 273 (C.A.A.F. Mar. 23, 2026). There, the CAAF found that the appellant's rights invocation was clear and unequivocable, despite the law enforcement agent, the lower court, and two CAAF judges thinking otherwise...I'd like my lawyer, dawg, now please. See State v. Demesme, 228 So. 3d 1206 (La. 2017) (finding that requesting a "lawyer dog" was an ambiguous invocation).
As always, we welcome questions and comments from our fans at litigator.libations@gmail.com.
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On this week's episode, Sam and Trevor focus on a recent case from the Supreme Court, Villarreal v. Texas, 2026 U.S. LEXIS 1103 (U.S. 2026). Villarreal explains the limits on how and when a judge can prevent a testifying defendant from talking to his or her attorney during a recess. The Supreme Court discusses two major cases in resolving this issue: Geders v. United States, 425 U. S. 80 (1976), and Perry v. Leeke, 488 U. S. 272 (1989).
Following their discussion about Villarreal, Sam and Trevor turn to a recent Navy-Marine Corps Court of Criminal Appeals case, United States v. Gonzalez, No. 202500333, 2026 CCA LEXIS 115 (N-M Ct. Crim. App. Mar. 6, 2026). There, the duo discusses how old sentencing tips remain valuable even after the changes to Article 66, UCMJ, that turned appellate "sentence appropriateness" review into an assessment over, amongst others, whether a sentence is "plainly unreasonable."
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This week, Sam and Trevor start off by answering a listener question about one of last episode’s cases: United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026). After a brief recap and debate, the two tackle United States v. Matti, No. 25-0148, 2026 CAAF LEXIS 189 (C.A.A.F. Feb. 17, 2026), a recent Court of Appeals for the Armed Forces (CAAF) decision on improper argument. Matti reveals the frustration of the CAAF judges, who appear tired of repeatedly dealing with the same improper arguments by Government counsel. To educate the field, the CAAF published an appendix to Matti, which un-exhaustively lists twenty-two improper arguments, and encouraged all military judges and counsel to read the appendix to protect against future errors.
But a week after Matti, the Air Force Court of Criminal Appeals issued United States v. Kindred, No. ACM 40607 (f rev), 2026 CCA LEXIS 87 (A.F. Ct. Crim. App. Feb. 24, 2026). In this case, the Air Force Court seemingly disagreed with the CAAF’s determination that certain arguments were improper. Sam and Trevor discuss Kindred and how the Air Force Court got it right for at least one improper argument that implicated constitutional rights, but got it wrong for others.
Questions, comments, concerns? Send them our way at litigator.libations@gmail.com! (Since, apparently, we can’t respond to Buzzsprout fan mail immediately…)
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This week, Sam and Trevor tackle two cases that foretell the risks of prioritizing expediency over process. First, after eight years, United States v. Jacinto, No. 24-0144, 2026 CAAF LEXIS 116 (C.A.A.F. Feb. 2, 2026), comes to end. This case went up and down on appeal due to a denied continuance and in camera review request concerning medical records disclosed on the “eve” of trial. While the Court of Appeals for the Armed Forces (CAAF) found the denied continuance harmless, this case should be in any trial practitioner’s back pocket when seeking a continuance.
Second, the duo debate United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026), a published Navy-Marine Corp Court of Criminal Appeals case that addresses how convening authorities can refer what looks like a covered offense after the Office of Special Trial Counsel defers prosecution…so long as it’s not labeled as “a covered offense.” Sam and Trevor’s spirited debate ends with a reminder about ensuring jurisdiction in each case and testing the bounds of Kruse.
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This week, Sam and Trevor discuss four of the latest Court of Appeals for the Armed Forces opinions. The first case they cover is United States v. Malone, No. 25-0140, 2026 CAAF LEXIS 62 (C.A.A.F. Jan. 20, 2026), which addresses how defense counsel can waive multiplicity issues. But the CAAF’s reasoning also strongly suggests that ineffective assistance of counsel claims may increase following this decision.
The second case the duo covers is United States v. Moore, No. 25-0110, 2026 CAAF LEXIS 73 (C.A.A.F. Jan. 23, 2026), which is the latest installment of the Mendoza-Casillas saga. Moore is one of three cases that the CAAF decided, which appear to, once again, limit the once-powerful reach of United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024). See United States v. Casillas, 86 M.J. 94 (C.A.A.F. 2025) (tailoring Mendoza to a sexual assault case that included sleep). The other two cases the CAAF decided with Moore are United States v. Serjak, No. 25-0120, 2026 CAAF LEXIS 74 (C.A.A.F. Jan. 23, 2026),and United States v. Hennessy, No. 25-0112, 2026 CAAF LEXIS 72 (C.A.A.F. Jan. 23, 2026). While Sam and Trevor focus on Moore because it espouses three "new" legal principles for sexual assault cases without consent, all three cases provide insight into how Article 120(b)(2)(A), UCMJ, cases may evolve.
As always, send us your comments or questions to litigator.libations@gmail.com.
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For the 100th episode of Litigator Libations, Sam and Trevor keep it short and sweet. They discuss two recent decisions. First, they talk about Case v. Montana, No. 24-624, 2026 U.S. LEXIS 432 (Jan. 14, 2026), from the Supreme Court. Case reaffirms Brigham City v. Stuart, 547 U.S. 398 (2006), which discussed the proper test for the emergency assistance exception to the warrant requirement, but addresses it in the context of a suicide attempt. Second, they discuss United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 6 (A.F. Ct. Crim. App. Jan. 16, 2026), from the Air Force Court of Criminal Appeals. Based on United States v. Jones, 66 M.J. 704 (A.F. Ct. Crim. App. 2008), and United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999), Marschalek reaffirms that preemption cannot be waived by a guilty plea.
As always, feel free to reach out with questions or comments at litigator.libations@gmail.com.
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Happy New Year, everyone! This week, Sam and Trevor cover two cases where the Court of Appeals for the Armed Forces (CAAF) analyzes the purported arbitrary application of military rules of evidence. The first is United States v. Maebane, No. 24-0196, 2025 CAAF LEXIS 772 (C.A.A.F. Sep. 18, 2025). In this 3-2 decision, the CAAF overturned a conviction where a third party’s confession was ruled inadmissible under Military Rule of Evidence 807. The duo dissects the detailed facts to show how and why the CAAF reached the decision it did. During their discussion, they talk about two Supreme Court cases: Chambers v. Mississippi, 410 U.S. 284 (1973), and Holmes v. South Carolina, 547 U.S. 319 (2006). The second case they discuss is United States v. Miller, No. 25-0025, 2025 CAAF LEXIS 803 (C.A.A.F. Sep. 24, 2025). In this 4-1 decision, the CAAF held that Military Rule of Evidence 412 hearings must be closed and that military judges need not hold an open hearing to decide whether, on the facts of the case, the hearing ought to be closed. Sam and Trevor also highlight the dissent and draw parallels between Miller and the Supreme Court’s recent decision in Pitts v. Mississippi, 223 L.Ed.2d 151 (U.S. 2025).
As always, feel free to reach out with questions or comments at litigator.libations@gmail.com.
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In their last episode of 2025, Sam and Trevor discuss all things waiver.
There are four cases on the agenda, so buckle-up! First, United States v. Arroyo, 2025 CAAF LEXIS 688 (C.A.A.F. Aug. 19, 2025), which deals with how and why an appellate court can consider that an appellant got the “benefit of the bargain” from a plea agreement during its sentence appropriateness analysis. Second, United States v. Cook, 2025 CAAF LEXIS 726 (C.A.A.F. Aug. 28, 2025), which covers how an accused can waive the maximum punishment calculation. Third, United States v. Suarez, 2025 CAAF LEXIS 651 (C.A.A.F Aug. 5, 2025), which holds that unlawful command influence can be waived. And, finally, United States v. Batres, 2025 CAAF LEXIS 755 (C.A.A.F. Sep. 9, 2025), which grapples with the meaning of “transaction” under Rule for Courts-Martial 1002(d)(2)(B)(i).
A few other cases that come up during their discussion are United States v. Brown, 2025 CAAF LEXIS 691 (C.A.A.F. Aug. 20, 2025) (granting review), United States v. Cole, 84 M.J. 398 (C.A.A.F. 2024), and United States v. Baker, 14 M.J. 361 (C.M.A. 1983), abrogated on other grounds by United States v. Teters, 37 M.J. 370 (C.A.A.F. 1993). The briefs for Brown are available here: https://www.armfor.uscourts.gov/GrantedCasesBriefs.htm
After covering all these cases, the duo are taking a quick break and will see everyone again after the New Year! Happy Holidays! In the meantime, you can always email us with questions or comments at litigator.libations@gmail.com.
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Happy Thanksgiving! This week, Sam and Trevor tackle United States v. Gonzalez, 2025 CAAF LEXIS 761 (C.A.A.F. 2025), and United States v. Ruiz, 2025 CAAF LEXIS 656 (C.A.A.F. 2025). While both cases have some interesting facts, they also have big takeaways for trial practitioners.
In Gonzalez, we see the first effects of United States v. George, 85 M.J. 133 (C.A.A.F. 2024), where the parties’ interpretations of the specification at trial trump arguments on appeal. For Ruiz, prior consistent statements under MRE 801(d)(1)(B)(ii) seem to be expanded outside the narrow path articulated in United States v. Finch, 79 M.J. 389 (C.A.A.F. 2020). Now part of a circuit split, Ruiz is petitioning SCOTUS on this issue, so keep an eye out for any developments dealing with whether SCOTUS will extend Tome v. United States, 513 U.S. 150 (1995), to this category of prior consistent statements. The full Petition for Writ of Certiorari is available at: https://www.supremecourt.gov/DocketPDF/25/25-561/383633/20251105123311855_Ruiz%20v.%20United%20States%20Petition%20for%20Writ%20of%20Certiorari.pdf.
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This week, Sam and Trevor tackle United States v. Downum, __ M.J. __, No. 24-0156/AR, 2025 CAAF LEXIS 828 (C.A.A.F. Sep. 30, 2025). Well, sort of.
In Downum, the CAAF makes an interesting point about what is required to invoke the permissive inference for unlawful use of a controlled substance under Article 112a, UCMJ. The CAAF seems to imply that the Government “must” present certain evidence to get the permissive inference. But this appears to change decades of case law on how the permissive inference works in "naked UA" cases (i.e., when the only evidence of drug use is from the urinalysis test).
The duo discuss the history of the permissive inference, spanning United States v. Campbell, 50 M.J. 154, 160 (C.A.A.F. 1999) (aka Campbell I), United States v. Campbell, 52 M.J. 386, 388 (C.A.A.F. 2000) (aka Campbell II), and United States v. Green, 55 M.J. 76, 80 (C.A.A.F. 2001), before ending up back at Downum with some practice tips and advice for trial litigators.
As always, feel free to email the nerds with any feedback, thoughts, questions, or legal conundrums at litigator.libations@gmail.com.
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Nothing is spookier this Hallow’s Eve than the Government failing to provide evidence to criminal defendants. In their Halloween special, Sam and Trevor untangle the web that is United States v. Secord, __ M.J. __, 2025 CAAF LEXIS 646 (C.A.A.F. 2025), a case about digital data and R.C.M. 701 possession. Then, they turn to a case straight out of the twilight zone, United States v. Roan, __ M.J. __, 2025 CAAF LEXIS 760 (C.A.A.F. 2025), involving hidden and destroyed evidence. Much like this lost evidence, no one is safe this Halloween! In discussing both cases, they mention a pending case at the CAAF, United States v. Braum, No. 25-0046/AF, 2025 LX 464077 (C.A.A.F. Oct. 8, 2025), and a case from last term, United States v. Strong, 85 M.J. 58 (C.A.A.F. 2024).
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In their debut episode as hosts, Sam and Trevor discuss the recent CAAF decision,United States v. Casillas, __ M.J. __, 2025 CAAF LEXIS 692 (C.A.A.F. 2025). Casillas clarifies (or confuses?) the holding in United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024), that cases charging a “without consent” theory of liability under Article 120, UCMJ, cannot be proven where the complaining witness is incapable of consenting, i.e., asleep or unconscious. Sam and Trevor also discuss a recent Navy CCA decision, United States v. Grafton, No. 202400055, 2025 LX 342911 (N-M. Ct. Crim. App. Aug. 11, 2025), that highlights some of the post-Mendoza influences (or problems?) in military justice practice. Before concluding, the duo briefly discuss instructional errors under Yates v. United States, 354 U.S. 298, (1957).
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In today's episode we say farewell to long-time host Darrel Johnson and officially welcome our new hosts, Sam Castanien and Trevor Ward! In so doing, we discuss United States v. Saul & United States v. Navarro-Aguire, two cases that speak to the providence of a guilty plea and the importance of clarifying inconsistencies during the Care inquiry. We then discuss United States v. George, an important case that makes new law on how the appellate courts will evaluate defective/ambiguous specifications.
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In this week's episode we discuss one CAAF case, one N-MCCA case, and the reversing the script on MRE 404(b). The CAAF case is United States v. Patterson, where CAAF declines to second guess the AFCCA on factual sufficiency because it is statutorily restricted to reviewing questions of law. The N-MCCA case has several issues, including the permissive inference in a no-BCD SPCM, the Confrontation Clause, and the Constitutionality of a mandatory no-BCD SPCM in a drug case. We then hear from Raquel Muscioni on utilizing M.R.E. 404(b) to prove up motive, competence, or other non-character matters pertaining to government witnesses.
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In today's episode we discuss two cases from the Court of Appeals for the Armed Forces: United States v. Johnson, which cements the conclusion that military appellate courts will not correct an erroneous indorsement to the Statement of Trial Results or Entry of Judgment requiring firearm prohibitions; and United States v. Thomas, which discusses the burdens on the defense and government under Batson v. Kentucky . . . even though it is not at all clear that that case applies to the facts of this case. We then hear from Allen Abrams on the "permissive inference" and when and how to object to it.
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In this week's (lengthy) episode we discuss United States v. Taylor, which deals with the statutory requirements that must be satisfied when involuntarily recalling a reserve member to active duty for purposes of court-martial (and how they differ from the statutory requirements that must be satisfied to subject the reservist to UCMJ jurisdiction). We then discuss United States v. Harborth, where the issue was whether the government must have probable cause before accepting property seized by a private party . . . but the court avoids answering that question by finding 1) Harborth waived consideration of the length of time the property was held without probable cause, 2) a search or seizure by a private actor, not acting at the behest of the government, does not implicate the Fourth Amendment, and 3) the waiver was not IAC because, even if the search was unconstitutional, the military judge would have nevertheless exercised his discretion to find that suppression of the evidence was not warranted. Not great.
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This week we discuss United States v. Brinkman-Coronel, where the CAAF acknowledges that cellular phones are unique under the Supreme Court's Fourth Amendment analysis, but then presses on to treat third party consent to the search of a cell phone in the same manner as third party consent to search a brief case. Disappointing. We then hear from Captain Elliot Ko with a very thoughtful discussion of MRE 513 in regard to Family Advocacy records -- including seven specific suggestions for defenders.
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In this week's episode we discuss the AFCCA case of United States v. Hunt, where the AFCCA applies the new factual sufficiency analysis and concludes that the government failed to prove guilt beyond a reasonable doubt -- a huge defense win. We then hear from Allen Abrams on Military Rule of Evidence 105 -- Allen does an excellent job of conveying the importance of the rule and how defenders can harness its power to ensure evidence is used in the manner most beneficial to the client.
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Today Lt Col Allen Abrams joins to discuss the case of United States v. Shafran. The issue in the case is an Article 134 specification that failed to include words of criminality, such as "wrongfully" or "unlawfully." The case provides an excellent vehicle for Allen to provide defenders with considerations and options for attacking defective specifications. We then hear from the Free Speech Dynamic Duo - Trevor Ward and Sam Castanien who apply the current state of Free Speech law in military justice to the enumerated Article 134 offense of Sexual Harassment.
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In this episode we discuss United States v. Caswell, where the Air Force Court of Criminal Appeals declined to follow the bench book and CAAF precedent, because it found that by moving the offense of unlawful possession of a concealed dangerous weapon from Article 134 to Article 114, the nature of the offense changed to put more onus on the unlawfulness element. Therefore, it declined to apply the "permissive inference" that previously allowed the factfinder to infer unlawfulness based solely on evidence the weapon was concealed. We then shift gears and talk about an upcoming CAAF case (United States v. Miller) on the issue of whether the automatic closure of an MRE 412 hearing is unconstitutional.
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In this episode we discuss the case of United States v. Urieta, where CAAF found an abuse of discretion in a military judge's failure to grant a defense challenge for implied balance in light of the liberal grant mandate. We also discuss United States v. Valentin-Andino, which makes clear that "appropriate relief" may not feel like any relief at all to the client. We also get to hear from Major Rebecca Saathoff on strategic considerations when objecting (or hoping opposing counsel fails to object) to a proper confrontation of a witness with a prior inconsistent statement.
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This week we discuss the CAAF case of United States v. Greene-Watson, which is another case addressing Military Rule of Evidence 404(b) and the very thin line between common scheme or plan and propensity under CAAF's recent case law. We also here from contributor Captain Jeffrey Critchlow on the history, evolution, and current state of the law regarding the spousal communication privilege.
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In this episode Sam Castanien and Trevor Ward return with a great discussion on Free Speech law in military justice - particularly in regard to the possession of obscene cartoon, anime, or computer generated images that the government attempts to charge as child pornography. Making her Litigator Libations debut, is Rebecca Saathoff providing important information on how courts-martial and appellate review can impact your client's online presence. Two great discussions from the good folks at Appellate Defense!
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Today we discuss the CAAF case of United States v. Campos, decided on February 19, 2025. It is an important case for defense counsel because the court provides important distinctions between what might be admissible as aggravation evidence in the prosecution's sentencing case, but is improper in an unsworn victim impact statement. We then hear from Major Ciara Ryan who discusses how to object when the government notices M.R.E. 404(b) evidence, but the evidence they seek to admit for a relevant non-propensity purpose is already coming in to prove a separate charged offense.
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This week we discuss United States v. Davis, where the majority at CAAF held that where a military judge removes himself from a case to avoid granting a defense motion, and then details a different judge to the same case in hopes of the motion being denied, was not structural error and, although wrong, did not prejudice the appellant. We then hear from Captain John Fredericks on a recent trend of represented victims refusing to appear at MRE 412 or MRE 513 motion hearings and he provides advise on how to ensure those witnesses appear and provide testimony necessary to resolve the motion.
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In this episode we discuss the CAAF case of United States v. Shelby, which was an Article 62 appeal of the military judge dismissing an abusive sexual contact charge with prejudice. The CAAF held that the military judge abused his discretion by applying the cumulative error doctrine at the trial level. We then pass on a hot take from Captain Riley Vann, who educated me on the Boyfriend Loophole to firearm prohibitions upon conviction of a misdemeanor crime of domestic violence. Finally, we once again here from Lt Col Mouakar who provides an excellent discussion on the importance of early investigation into mitigation evidence, how to conduct that investigation, and how to use the information gained.
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In today's episode we discuss the Air Force Court of Criminal Appeals case of United States v. Rocha, which considers the constitutional protections, as set out in Lawrence v. Texas, to private, secret, solitary masturbation with a child-sized sex doll. Spoiler alert: The Constitution Wins! We then provide some comments on changes to the Manual for Courts-Martial as a result of the 2025 National Defense Authorization Act and Executive Order 14,130.
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In today's episode we discuss the recent Air Force Court of Criminal Appeals case of United States v. Doroteo, where the court discussed three important issues for defensive litigation: 1) liberal discovery rules applicable to military justice, 2) the awesome power of R.C.M. 914, and 3) the excited utterance exception to the prohibition against hearsay. The advocacy piece this week is just some thoughts on how to get sex offender registration under SORNA into the defense mitigation case in sentencing (rather than just in the unsworn) so as to avoid the Talkington instruction that essentially tells the members to disregard sex offender registration as a collateral consequence.
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Happy Holidays! Today's episode discusses the recent CAAF case of United States v. Wells, where Airman Wells asserted that Clause 2 of Article 134 (acts made criminal where they act is of a nature to bring discredit upon the armed serves) is unconstitutionally void for vagueness. The CAAF found the Clause constitutional and re-iterated that the government is not required to prove that anyone knew of the conduct or that it actually impacted any person's opinion of the armed services. Because the CAAF relies on Parker v. Levy for the constitutionality of Article 134, I take a detour to discuss that case in hopes of putting it in context. We then hear from Major Nicole Moukar from the Appellate Defense Division with some important considerations and strategies when working with child witnesses.
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Today we discuss a NMCCA case that dismisses an illegal drug use charge under Article 112a, UCMJ, for being factually insufficient. The case provides a great vehicle for discussing the permissive inference instruction and how defenders should push back against its use when there is no actual evidence that would make the inference reasonable. We then hear from Captain Brusik on the Novel Offenses Doctrine, which is closely related to the pre-emption doctrine for Article 134 offenses. He does a great job of breaking it down and highlights defense challenges to charging allegations of sexual harassment under Article 92, when there is now an enumerated Article 134 offense for that offense.
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This week we discuss the case of United States v. Guihama, where the Court of Appeals for the Armed Forces revisits the issue of the quantum of evidence required to corroborate a confession before the confession can be admitted in evidence (spoiler alert - not much). We then hear from Lt Col Tony Ghiotto who returns with weaponizing the rules of evidence and narrows in on character evidence.
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[Revised] In this week's episode we discuss United States v. Flanner; an opinion from the Court of Appeals for the Armed Forces that walks back CAAF's earlier proclamation that the right to counsel attaches earlier in military justice than it does under the Fifth Amendment. We then hear from Major Ciara Ryan on how to effectively communicate with and prepare your client while still maintaining professional distancing so as to preserve your own well being.
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This week we hear from Sam Castinien and Trevor Ward on major developments in Free Speech law in the military. The issue is raised in United States v. Smith, which was decided by CAAF on September 13, 2024. We then hear from first-time contributor Nicole Herbers, who discusses the sticky wicket of objecting to the government's argument in a judge alone forum.
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Today we discuss the recent and significant case of United States v. Mendoza, where CAAF holds that evidence that a named victim lacked the capacity to consent due to impairment by drugs or alcohol, will not support a conviction for sexual assault without consent under Article 120(b)(2)(A). This case will have a big impact on how sexual assault cases are charged and litigated going forward. We also hear from Major Ciara Ryan on member instructions -- she provides great thoughts on being creative to ensure your client gets the instructions most favorable to the defense.
In today's episode we discuss the CAAF decision in United States v. Strong, where CAAF creates a new definition of "seize" applicable only to electronic data for the offense of Prevention of Authorized Seizure of Property, Article 131e, UCMJ. We then hear from Captain Fredericks on Article 37, UCMJ, Unlawful Influence.
In this, the last episode of Season 3, we discuss HVZ v. U.S., where CAAF found that MRE 513(e) gives patient's standing to the extent that they have a right to be heard on a defense motion to compel their mental health records regardless of whether the records are privileged under MRE 513. We also hear from Lt Col Ghiotto who discusses the rule against hearsay and a couple of exceptions that defenders may want to consider.
In this week's episode we discuss United States v. Grijalva. In this case the government had an Article 117a (wrongful distribution of intimate visual images) offense but didn't think it could prove a direct and palpable connection to a military mission or the military environment (element 4). So it dropped that element and re-packaged it as an offense under the general article, Article 134. The CAAF applies the preemption doctrine but also takes a stroll through the First Amendment -- and both have consequences for defense counsel.
In today's episode we hear from Lt Col Tony Ghiotto (a.k.a Professor Ghiotto) on the recent Supreme Court Case of Diaz v. United States, which speaks to how close an expert may come to providing an opinion on a ultimate issue (such as whether the accused held a specific intent). It is an excellent discussion that includes how the law has developed over the years and why. We also hear, once again, from Major Ciara Ryan, fresh off her successful defense of a client charged with murder. She tells us how she and her defense team utilized RCM 913(c) to orchestrate a field trip for the entire court to visit the alleged crime scene. A great episode from two outstanding contributors!
It is Case-A-Palooza! In this episode we discuss two CAAF cases and then quickly touch on two SCOTUS cases. United States v. Keago is a CAAF opinion holding that a military judge abused her discretion by failing to grant two defense challenges for cause at voir dire. It preserves the liberal grant mandate and provides helpful guidance to defenders. United States v. Metz holds that law enforcement agents did not believe, nor should they have reasonably believed, that Corporal Metz was a suspect in need of rights advisement despite going to his barracks to interview him after discovering a fire they believed was arson, learning that it was likely started with someone who had a key to the building, Metz had a key to the building, Metz was disgruntled and two items in the building that were specifically targeted by fire belonged to his supervisor, and his supervisor told the investigators that if anyone started the fire, it was Corporal Metz...not a suspect! The case also holds that Corporal Metz's consent to search his room was not the fruit of his illegal apprehension occasioned immediately prior to the consent. We then turn to SCOTUS where Smith holds that a testifying expert who parrots the facts and conclusions proffered by a non-testifying expert as the basis for his opinion, amounts to hearsay and if the statements are testimonial they also violate the Confrontation Clause. In Rahimi, the Court upholds a federal law prohibiting the possession of firearms by a person subject to a domestic violence protective order as consistent with the history and tradition of firearm regulation in the United States.
In this (lengthy) episode we discuss the recent CAAF case of United States v. Cole, where the CAAF set aside the sentence because it was far from clear whether the military judge was punishing A1C Cole for the crime he pled guilty to, or the more serious crime that the military judge described. We also discuss a second case that also busts a guilty plea. In United States v. Moore, the NMCCA set aside findings and sentence based on evidence the government put on in sentencing that cast significant doubt as to the providence of Sergeant Moore's plea of guilty. Finally, we hear from Lt Col Allen Abrams who discusses the impacts (or lack thereof) of Article 58a, UCMJ, which allows for automatic reduction to E-1 upon imposition of a sentence that includes confinement, hard labor without confinement, or a punitive discharge. As a matter of policy, the Air Force has never opted in to Article 58a but recent changes to the wording of the statute has muddied the water a bit. Allen provides some arguments for defense counsel wrestling with the issue.
In this week's episode we discuss United States v. Wilson, where the CAAF reviews the admission of MRE 404(b) evidence for an abuse of discretion. The opinion provides helpful guidance and helpful language for defenders in defending off the admission of inappropriate propensity evidence. We also hear from Major Ciara Ryan who discusses immunity and what to do when a witness invokes their rights against self-incrimination while on the stand.
In this episode we discuss the recent case of United States v. Rocha, where the CAAF reversed the Air Force Court of Criminal Appeals, which found that the enumerated Article 134 offense of Indecent Conduct, did not put Airman Rocha on notice that masturbating with a sex doll with childlike characteristics was a crime. CAAF says it did. We then hear from Lt Col Allen Abrams who provides a six step analysis on how defenders can analyze and attack the specification drafted by the government.
In today's episode we discuss U.S. v. McNulty, which involved a claim of IAC based on defense counsel not seeking an R.C.M. 706 inquiry, A.K.A., a sanity board. The claim fails but the case gives us an opportunity to discuss the issues of lack of mental responsibility and mental capacity. We also discuss an AFCCA case (U.S. v. Csiti), which demonstrates the further degradation of appellate rights under the changes to Article 66, which now limits the scope of the CCA's factual sufficiency review. Finally, we hear from Major Frederick Johnson on things you need to know when representing clients who may remain on active duty pending the appellate resolution of their case.
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 from Major Crouch with thoughts on starting strong in your sentencing arguments.
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 Ryan on the issue of hearsay and, more specifically, evidence that is allowed as non-hearsay (e.g., effect on listener) and ensuring that evidence doesn't find its way into trial counsel's arguments.
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 and Flores cases, but only very briefly. We then get to hear from Lt Col Allen Abrams for guidance on effectively getting concessions from witnesses on cross-examination without explicitly requesting the concession.
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 nonetheless. We also hear from Major Heather Bruha on defensive advocacy under the new Rules pertaining to victim impact statements, including specific sentence recommendations, no advance notice as to content, and perhaps more latitude in what amounts to victim impact.
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 and removal of privileged materials. We then hear from Major Ciara Ryan regarding how defenders can prevent trial counsel from misappropriating hard won defense MRE 412 evidence. Finally, we get an excellent update from Captain John Fredericks on the effort to protect client's from unconstitutional firearm prohibitions.
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 overreach and, therefore, an unreasonable multiplication of charges. This gives us a chance to discuss multiplicity & UMC! We also hear from Major Samantha Golseth who gives excellent advice to defenders; encouraging them to pull the elements of the offenses as early as possible and how to best use them as you prepare for, and put on, your defense at court-martial.
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 methamphetamine based on his review of another expert's report and notes. The expert also testified as to the steps the non-testifying expert took, her process, and the results. Was Smith denied confrontation? We also hear from Major Ciara who gives a very helpful discussion on how to approach the sentencing case - even for those challenging clients.
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 a lawful seizure can become unconstitutional when the government unreasonably delays in its search of the seized device. We also hear from John Fredericks -- ADC at Davis Monthan AFB -- with an excellent walk through the state of the law regarding the federal firearm prohibitions set out 18 U.S.C. 922, and how to ensure your client's Second Amendment rights are protected.
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 article to prepare for trial as well as specific methods of using the article to impeach the witness on the stand. Thank you to both Allen and Trevor for wrapping up 2023 with an interesting and helpful pod!
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. Happy Holidays!
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 text be written and sent within sight or hearing of the victim? And, 2) does the requirement that "the victim was then in the execution of office" require the victim to be in the execution of his or her office at the time the disrespectful text was sent?
Major Ciara Ryan also returns with an excellent discussion of a hot topic -- writs submitted to the Air Force Court of Criminal Appeals by a named victim. This is becoming more and more common and defense counsel need to be prepared to limit the potential of any negative impacts to the client.
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 Ryan for a quick discussion on Character Evidence (a powerful tool).
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's conduct. More specifically, the court focuses on what the statute means when it says the indecent conduct must be "in the presence of" the child. We will also hear from Major Ciara Ryan (Captain at the time of her recording) who does a great job of distinguishing refreshing recollection from impeachment and the implications of each.
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. Specifically, the very beginning of voir dire and introduces the three H's to help counsel be thoughtful to be sure they get off on the right foot with the panel.
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 has a smooth transition to an appellate defense counsel should he or she be convicted at court-martial.
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 exception to cover epiphanies. We then turn to Major Allen Abrams who discusses the Clergy privilege by not only explaining the rule, but giving great advice on how the rules applies to clients and other witnesses and things counsel should do when the privilege may come into play.
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 suffered serious emotional distress from the communications. The Court held that the First Amendment required Colorado to prove that the defendant knew that, or was reckless as to whether, his communications would likely cause serious emotional distress. The case will impact Article 130 (Stalking) in the UCMJ although it will likely not impact Article 115 (Communicating a Threat). This episode also includes a dispatch from Captain Heather Bezold, who shares her recent experience ensuring that her client was able to have his motion to dismiss for speedy trial violations heard and still benefit from a favorable plea agreement.
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 of privileges and address laying the foundation for what would be, but for the waiver, a privileged communication.
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 group voir dire with some thoughts on how to phrase your questions to make them less confusing and more conversational.
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 evidence when the government does not oppose the admission of the evidence.
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 reprimand). Major Allen Abrams then brings us a discussion of prior inconsistent statements in situations where it gets complicated because there are a number of inconsistencies in a single assertion.
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.
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 discuss some concepts to keep in mind as you plan for keeping notes and tracking the multitude of things that happen at trial.
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 expectation of privacy in a mirror-image copy of his laptop's hard drive when he revoked consent to search. Major Allen Abrams then discusses when and how you might want to consider using open ended questions during your cross-examination.
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 are giving nonsense answers.
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.
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 victim when acting on a deferment request, the convening authority must provide notice and an opportunity to respond to the defense. Major Allen Abrams then discusses how to ensure "gotcha" statements are admitted for the proper purpose at courts-martial.
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 discusses different aspects of authentication; the foundation for admissibility.
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. Gatewood; but the citation was correct: 65 M.J. 724. In the advocacy portion of today's podcast, Major Matt Leal discusses The Chapter Method of cross-examination, as described to him by Mr. Larry Posner at a recent NACDL training event.
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 effective use of volume. Happy New Year!
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 presentation of Presentation!
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 gives examples of, pacing and the impact it has on conveying meaning beyond the words themselves.
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 introduction into a multi-part series on how to improve your delivery -- that is the "how" you say rather than just the "what" you say.
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.
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(b), which allows counsel to cross-examine a witness on specific instances of contact that speak to the veracity of the testifying witness.
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 back to Litigator Libations!
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 trial.
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!
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!
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 Appeals for the Armed Forces case of United States v. Whiteeyes, which demonstrates how little independent evidence is required to corroborate a confession or admission. Finally, we discuss an exercise from a storytelling course that uses non-verbals to help your client understand the importance of appearing composed and professional throughout the court-martial.
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 walks us through how to lay a foundation for a presence sense impression and distinguishes that hearsay exception from others such as the excited utterance.
In this episode Major Allen Abrams breaks down two recent cases from the Court of Appeals for the Armed Forces. In Nelsonthe 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 Hornethe court addressed a UCI issue created by trial counsel and victims counsel (I choose no apostrophe) colluding to deter AFOSI from interviewing the complainant's husband despite knowing the husband was the first "outcry" witness and had information favorable to the defense. Finally, Allen does a great job of describing how he allows the story of the case to present itself as he works through the facts, law, and questions the case presents. Enjoy!
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 a business record with a witness at trial.
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.
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.
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.
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.
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!
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 refreshed.
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 innocence and right to due process . . . it didn't. We then move on to discuss the hearsay exception for declarations of a then-existing mental, emotional, or physical condition.
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!
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 portion of the episode focuses on the admissibility and use of lay opinions regarding the demeanor of a third party. Enjoy!
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.
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 were required to notify the court that it lacked jurisdiction over the offense. But if it is not jurisdictional, and the RCMs say you can raise it at any time . . . there may be cases where you want to see how findings plays out before raising the error? In the advocacy piece (at 15:37), I give some of my personal thoughts on opening statements. Happy listening.
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 rules of completeness and how they apply at courts-martial.
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 confrontation step!
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.
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 Force's mandatory COVID-19 vaccine where some commanders appear to be ignoring the law to achieve the desired ends: a fully vaccinated force.
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.
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 maintain a certain amount of marijuana and the fact that he wanted some demonstrated that he must have distributed his stock to the informant and needed to replenish. The case is interesting because it involves several rules of evidence, "opening the door" to excluded evidence, and the risk of broad assertions. At about 14:19, the episode changes gears slightly to discuss using text messages on cross-examination.
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 the statement contains only proper victim impact. At 11:08 the episode shifts gears and discusses the concept of "depth" on cross-examination. I hope you find it helpful!