Our Lawyers Defend False Sexual Assault Allegations
A confrontation clause analysis chart:
Declarant Unavailable? Testimonial? Opportunity for M.R.E. 804(a),
Cabrera-CC satisfied Crawford, Hammon/Davis, Frattini 65 M.J. 241, Owens,
Cross-Exam Prior Rankin, Melendez-Diaz, Lyons, to Trial? Blazier, Bryant, Bullcoming, Russell 66 M.J. 597
Lusk, Sweeney Inadmissible – CC satisfied Inadmissible – Violates CC – Violates CC Exhibits Check List: US v ____________________ Tried on: _________________ at: ________________ O R O R O R O R (__) Use of Force to Deter (5-2-5) (__) Other Instructions – self-defense (5-2-6) (__) ____________________________ (__) ____________________________ (__) ____________________________ (__) ____________________________ (__) Defense of Another (5-3) (__) Homicide/Aggravated Assault (5-3-1) (__) Preliminary instructions (P. 36). (__) Assault/Battery (5-3-2) (__) Beyond reasonable doubt (P. 37) (__) Homicide/Agg assault plus LIO (5-3-3) (__) Credibility of witnesses (P. 37). (__) Accident (5-4) (__) Joint offenders (7-2) (__) Duress (Compulsion or Coercion) (5-5) (__) Elements of offenses (Chp 3) (__) Defense of Property (5-7) (__) Vicarious liability. (Chp 7) (__) Parental Discipline (5-16) (__) Preliminary instruction on mental (__) Causation – Lack of (5-19) responsibility (6-3) (__) _________________________ (__) Accident (5-4) (__) _________________________ (__) Duress (Compulsion or Coercion) (5-5) (__) Entrapment (5-6) (__) Obedience to Orders (5-8) (__) Unlawful Order (5-8-1) (__) Lawful Orders (5-8-2) (__) CH/SP ________ LIO ________ (__) Physical Impossibility (5-9-1) (__) CH/SP ________ LIO ________ (__) Physical Inability (5-9-2) (__) CH/SP ________ LIO ________ (__) Financial and Other Inability (5-10) (__) CH/SP ________ LIO ________ (__) Ignorance or Mistake of Fact (5-11) (__) Specific intent/knowledge (5-11-1) (__) _____ (__) _____ (__) _____ (__) General intent (5-11-2) (__) Article 134 Check Offenses (5-11-3) (__) Drug Offenses (5-11-4) (__) Voluntary Intoxication (5-12) (__) Homicide/Aggravated Assault (5-2-1) (__) Alibi (5-13) (__) Non-Aggravated Assault (5-2-2) (__) Voluntary Abandonment (5-15) (__) Assault as LIO. (5-2-3) (__) Parental Discipline (5-16) (__) Homicide/unintended death (5-2-4) Evidence Negating Mens Rea (5-17) (__) Self-Help Under a Claim of Right (5-18) (__) Causation – Lack of (5-19) (__) Other ___________________________. (__) Other ___________________________. (__) Other ___________________________. (__) Pretrial Statements (Chapter 4) (__) Aider and Abettor (7-1-1) (__) Counseling, Commanding, Procuring (7-1- 2) (__) Causing an Act to be Done (7-1-3) (__) Liability of Coconspirators (7-1-4) (__) Have you Heard Impeachment Questions (__) Joint Offenders (7-2) (7-18) (__) Witness Under Grant of Immunity (7-19) (__) Mental Responsibility at Time of Offense (__) Chain of Custody (7-20) (6-4) (__) Privilege (7-21) (__) Partial Mental Responsibility (6-5) (__) False Exculpatory Statements (7-22) (__) Expert Testimony (7-9-1) (__) Closed Trial Sessions (7-23) (__) Evaluation of Testimony (6-6) (__) Brain Death (7-24) (__) Divers or Specified Conditions (7-25) (__) Circumstantial Evidence (7-3) (__) Proof of intent (__) Proof of knowledge (__) Stipulation of Fact (7-4-1) (__) Stipulation of Testimony (7-4-2) (__) Depositions (7-5) (__) Judicial Notice (7-6) (__) Credibility of Witness (7-7-1) (__) Interracial Identification (7-7-2) (__) Character Evidence – Accused (7-8-1) (__) Character Evidence – Victim (7-8-2) (__) Character for Untruthfulness (7-8-3) (__) (Expert Testimony (7-9-1)) (__) Polygraph Expert (7-9-2
)
(__) Accomplice Testimony (7-10) (__) Prior Inconsistent Statement (7-11-1) (__) Prior Consistent Statement (7-11-2) (__) Accused’s Failure to Testify (7-12) (__) Uncharged Misconduct – Accused (7-13-1) (__) Prior Conviction to Impeach (7-13-2) (__) Past Sexual Behavior of Nonconsensual Sex Victim (7-14) (__) Variance –Findings by Exceptions and Substitutions (7-15) (__) Value, Damage or Amount (7-16) (__) Spill-Over (7-17) (__) Instructions on Sentence (__) Article 58a (__) Pretrial Confinement Credit (__) Article 58b (__) 58b Clemency Powers by CA (__) Fine (__) Punitive discharge (__) Vested benefits. (__) No punishment. (__) Summary of Evidence in Extenuation/Mitigation (__) Mental Responsibility Sentencing Factors (6-9) (__) Accused’s Failure to Testify (__) Accused’s not Testifying Under Oath (__) Effect of Guilty Plea (__) Mendacity (__) Argument for Specific Sentence ((__) Clemency (P. 129)) (__) Other ______________________________. (__) Other ______________________________. (__) Other ______________________________. (__) Homicide/unintended death (5-2-4) (__) Use of Force to Deter (5-2-5) (__) Other Instructions – self-defense (5-2-6) (__) ____________________________ (__) ____________________________ (__) _____________________________ (__) _____________________________ (__) Preliminary instructions (P. 36). Defense of Another (5-3) (__) Beyond reasonable doubt (P. 37) (__) Homicide/Aggravated Assault (5-3-1) (__) Credibility of witnesses (P. 37). (__) Assault/Battery (5-3-2) (__) Joint offenders (7-2) (__) Homicide/Agg assault plus LIO (5-3-3) (__) Elements of offenses (Chp 3) (__) Accident (5-4) (__) Vicarious liability. (Chp 7) (__) Duress (Compulsion or Coercion) (5-5) (__) _________________________ (__) Defense of Property (5-7) (__) _________________________ (__) Parental Discipline (5-16) (__) Causation – Lack of (5-19) s (__) Accident (5-4) (__) Duress (Compulsion or Coercion) (5-5) (__) CH/SP ________ LIO ________ (__) Entrapment (5-6) (__) CH/SP ________ LIO ________ Obedience to Orders (5-8) (__) CH/SP ________ LIO ________ (__) Unlawful Order (5-8-1) (__) CH/SP ________ LIO ________ (__) Lawful Orders (5-8-2) (__) Physical Impossibility (5-9-1) (__) Physical Inability (5-9-2) (__) Financial and Other Inability (5-10) (__) _____ (__) _____ (__) _____ (__)Ignorance or Mistake of Fact (5-11) (__) Specific intent/knowledge (5-11-1) (7-1) (__) General intent (5-11-2) (__) Article 134 Check Offenses (5-11-3) (__) Drug Offenses (5-11-4) Self-Defense (5-2) (__) Voluntary Intoxication (5-12) (__) Homicide/Aggravated Assault (5-2-1) (__) Alibi (5-13) (__) Non-Aggravated Assault (5-2-2) (__) Voluntary Abandonment (5-15) (__) Assault as LIO. (5-2-3) (__) Parental Discipline (5-16) (__) Evidence Negating Mens Rea (5-17) (__) Accused’s Failure to Testify (7-12) (__) Self-Help Under a Claim of Right (5-18) (__) Uncharged Misconduct – Accused (7-13-1) (__) Causation – Lack of (5-19) (__) Prior Conviction to Impeach (7-13-2) (__) Other ___________________________. (__) Past Sexual Behavior of Nonconsensual (__) Other ___________________________. Sex Victim (7-14) (__) Other ___________________________. (__) Variance –Findings by Exceptions and Substitutions (7-15) (__) Value, Damage or Amount (7-16) (__) Pretrial Statements (Chapter 4) (__) Spill-Over (7-17) (if not given in Part II D) (__) Have you Heard Impeachment Questions (__) Aider and Abettor (7-1-1) (7-18) (__) Counseling, Commanding, Procuring (7-1- (__) Witness Under Grant of Immunity (7-19) 2) (__) Chain of Custody (7-20) (__) Causing an Act to be Done (7-1-3) (__) Privilege (7-21) (__) Liability of Coconspirators (7-1-4) (__) False Exculpatory Statements (7-22) (__) Closed Trial Sessions (7-23) (__) Joint Offenders (7-2) (__) Brain Death (7-24) (__) Divers or Specified Conditions (7-25) (__) Circumstantial Evidence (7-3) (__) _________________________ (__) Proof of intent . (__) _________________________ (__) Proof of knowledge. (__) _________________________ (__) Stipulation of Fact (7-4-1) (__) Stipulation of Testimony (7-4-2) (p. 52) (__) Depositions (7-5) (__) Judicial Notice (7-6) (__) Credibility of Witness (7-7-1) (__) Interracial Identification (7-7-2) (p. 54) (__) Character Evidence – Accused (7-8-1) (__) Character Evidence – Victim (7-8-2) (__) Character for Untruthfulness (7-8-3) (__) Expert Testimony (7-9-1) (__) Polygraph Expert (7-9-2
)
(__) Accomplice Testimony (7-10) (__) Prior Inconsistent Statement (7-11-1) (__) Prior Consistent Statement (7-11-2) (__) Instructions on Sentence (__) Article 58a (__) Pretrial Confinement Credit (__) Article 58b (__) 58b Clemency Powers by CA (__) Fine (__) Punitive discharge (__) Vested benefits. (__) No punishment. (__) Summary of Evidence in Extenuation/Mitigation (__) Accused’s Failure to Testify (__) Accused’s not Testifying Under Oath (__) Effect of Guilty Plea (__) Mendacity (__) Argument for Specific Sentence ((__) Clemency (P. 129)) (__) Other ______________________________. (__) Other ______________________________. (__) Other ______________________________. (__) Concluding Instructions –
Determine whether SM meets burden for PTC versus other less restrictive means of restraint.
RCM 305(d)
a. Probable cause that an offense triable by CM has been committed; b. PC that the person to be restrained committed the offense; and c. Circumstances require PTC.
Review Military Justice policy memoranda to determine if any CA withheld authority to approve PTC (GCMCA will often require approval).
If GCMCA requires approval, contact the CoJ to request SJA drive-by. Provide CoJ facts of the case and why you think the circumstances require PTC. If GCMCA does not require approval, notify CoJ of the command’s intent to place SM in PTC.
Contact whatever confinement facility will be holding SM.
Direct 27D to brief command on prisoner escort procedures, including signing for handcuffs from the MPs.
Direct 27D to contact medical facility to coordinate confinee medical exam.
Contact TDS to notify them that the command is putting SM in PTC. Request name of detailed DC and make contact.
Draft confinee advice memorandum.
RCM 305(e)
a. Nature of the offenses b. Right to remain silent c. Right to retain civilian counsel and right to request military counsel d. Nature of the confinement review procedure
Direct 27D to complete confinement order (DD Form 2707) and commander’s portion of any local forms. Review the confinement order for accuracy. 10. Have the command assemble the SM and escorts (senior to SM). Commander reads SM his rights and signs the confinement order. Escorts take SM to a medical facility then a confinement facility. 11. If someone other than the commander ordered the confinement, notify the commander of the name of the prisoner, the offenses charged/suspected, and the name of the person who order or authorized confinement. 
RCM 305(h)(1)
12. Identify a neutral and detached commander to conduct the combined 48-hour PC determination and 72-hour review. This can be another company commander in the same battalion.
RCM 305(h)(2)
13. Draft the 48-hour PC determination/72 hour-hour review memorandum and have the neutral and detached commander review it and sign it. The neutral and detached commander can sign this memorandum any time after the confining commander signs the confinement order but must be within 48 hours. 14. Coordinate with PTMM for a 7-day review. This review can be any time after confinement and after 48-hour determination/72-hour review and should generally be as soon as possible. Include detailed TDS attorney on all correspondence with PTMM. Notify TDS of time for a review hearing.
RCM 305(i)
15. Attend the 7-day review. If PTMM orders continued confinement, monitor SM’s confinement and ensure SM has access to his/her DC. If PTMM directs release, notify command and help the command come up with less restrictive restraint IAW RCM 304. 16. If continued confinement, charge SM as soon as possible IAW Article 10, UCMJ and RCM 707. If immediate charging is not an option due to ongoing investigation, document all forward progress on the case on a daily log for use during the Article 10 hearing.
Determine if you need to conduct a deposition. YES, if: a. Witness may be unavailable for Article 32 (see RCM 405(g)); OR b. A witness may be unavailable for trial (see RCM 703(b)). Pay particular attention to civilian witnesses traveling to foreign countries to testify at trial, OR c. Counsel wants to preserve sworn testimony for trial for some other reason (impeachment).
Identify who has the authority to order the deposition (RCM 702(b)): a. Pre-referral: The commander who has the charges for disposition. This is usually the brigade commander. b. Post-referral: The convening authority or the military judge.
TC: If you cannot attend the deposition, request support from the local MJ office through your COJ. This is common when the case will occur OCONUS and your witness is CONUS (deployed trial or OCONUS trial with civilian CONUS witnesses).
COJ: Identify COJ in the local jurisdiction and request logistical and TC support (deposition officer, courtroom, reporter, government counsel, witness transport, etc.). The deposition officer is usually a JAG attorney.
TC: Make your formal request to the appropriate authority using the format in RCM 702(c). If the charges are pre-referral, prepare deposition order IAW RCM 703(d) and provide notice to opposing party IAW RCM 703(f).
TC: If requesting local support, BPT brief the local TC on the basic facts of the case, your goal with the deposition, and provide a list of questions for him/her to ask.
Depo Officer: a. Notify parties and witnesses of time/date of deposition. b. If pre-referral and stationed OCONUS, coordinate with IA attorney to subpoena foreign civilian witnesses IAW local law. c. If post-referral and CONUS, subpoena witnesses. d. Be present on the day of deposition and follow all procedures outlined in RCM 703(f).
Reporter: Record and transcribe the deposition. Send to testifying witnesses, deposition officer, TC present and deposition, and DC for authentication.
TC: Continue preparing for trial as if the witness will attend. Obtain ITO, passport, visa, and plane tickets. Have 27D in charge of witness travel document or save all communications with witnesses. You need to prove to the court that you’ve done everything possible to bring the witness to trial. 10. Disclose to the DC your intent to use deposition testimony IAW RCM 701. Check the PTO to see if MJ requires notice of intent to use deposition testimony. 1. Probable cause to authorize a search exists if there is a
reasonable belief, based on facts
, that the person or evidence sought is at the place to be searched. Reasonable belief is more than mere suspicion. The witness or source should be asked three questions: A. What is where and when? Get the facts! 1. Be specific: how much, size, color, etc. 2. Is it still there (or is information stale)? a. If the witness saw a joint in barracks room two weeks ago, it is probably gone; the information is stale. b. If the witness saw a large quantity of marijuana in barracks room one day ago, probably some is still there; the information is not stale. B. How do you know? Which of these apply: 1. “I saw it there.” Such personal observation is extremely reliable. 2. “He [the suspect] told me.” Such an admission is reliable. 3. “His [the suspect’s] roommate/wife/ friend told me.” This is hearsay. Get details and call in the source if possible. 4. “I heard it in the barracks.” Such rumor is unreliable unless there are specific corroborating and verifying details. C. Why should I believe you? Which of these apply: 1. The witness is a good, honest Soldier; you know him from personal knowledge or by reputation or opinion of chain of command. 2. The witness has given reliable information before; he has a good track record (CID may have records). 3. The witness has no reason to lie. 4. The witness has a truthful demeanor. 5. The witness made a statement under oath. (“Do you swear or affirm that any information you give is true to the best of your knowledge, so help you God?”) 6. Other information corroborates or verifies details. 7. The witness made an admission against his or her own interests. 2. The determination that probable cause exists must be based on facts, not only on the conclusion of others. 3. The determination should be a common sense appraisal of the totality of all the facts and circumstances presented. Date/Time Called: ________________________ Called By: ______________________ of the ______________________office. The requesternot present an affidavit. The requestersworn. (The requester was not sworn because _______________________). The requesterpreviously requested another magistrate, judge or commander, to grant the same request. (If such a previous request was made, what new information – if any – has been obtained? _______________________________________________________________________________ The offense being investigated was: _______________________________________________________________________________ The requester requested to search for the following items: _______________________________________________________________________________ The requester wanted to search for the items at/in following place(s) or upon the following person: _______________________________________________________________________________ Why does the requester believe that what he/she wants to search for is located at the place(s) he/she wishes to search? (Indicate here a narrative of the information the requester presents. If an affidavit is attached, indicate only information that is not contained in the affidavit. UseFact Notes” sheets to detail information.) ______________________________________________________________________________ Documents or reports reviewed in making my decision. The names of the items I reviewed are listed on the reverse. Initial all pages of documents I reviewed. Probable cause to search exists when there is a reasonable belief that the property or evidence sought is located in the place or on the person to be searched. The request was _____________________________________________________________________. A written search authorization was executed.
1. Is the confinee subject to the UCMJ?
2. Was the confinee confined by order of a commissioned officer of the Armed Forces?
3. Was the confinee previously confined for the same offense(s) and released by any person authorized under R.C.M. 305(g)?
4. Did the confinee’s commander decide within 72 hours of ordering the confinee into pretrial confinement, or receipt of a report that a member of his unit was confined, whether pretrial confinement would continue?
5. Did the commander prepare a memorandum of his reasons for approving continued pretrial confinement?
6. Has a charge sheet been prepared?
7. Is the confinee charged only with an offense normally tried by summary court-martial?
8. Did the confinee have or request military counsel prior to this review or meeting with the prisoner?
9. Was the confinee’s counsel informed of the date, time, and place of any meeting with the prisoner?
10. Has the confinee been informed of: a. The nature of the offenses for which held; b. The right to remain silent and that any statement made by the confinee may be used against the confinee; c. The right to retain civilian counsel at no expense to the United States, and the right to request assignment of free military counsel; and d. The procedures by which continued pretrial confinement will be reviewed?
11. Is there a reasonable belief that a. An offense triable by court-martial has been committed; b. The confinee committed it, and c. Pretrial confinement Is required?
12. Has a written memorandum of the decision to approve continued pretrial confinement or order immediate release, including the factual findings upon which they were based, been prepared?
13. Have the confinee and the commander been informed of the decision?
14. Has a copy of the memorandum of the decision with all documents considered been kept on file? The nature and circumstances The more serious of the offenses charged or offense(s), the more likely it suspected, including may be the confinee might extenuating circumstances. want to avoid prosecution The weight of the evidence The more likely there will be a against the confinee conviction, the more likely it may be the confinee might avoid trial The confinee’s ties to the Where is home? What does community, including house, the confinee have to gain or family, off-duty employment, lose by leaving the area? financial resources, and length of residence The confinee’s character and Law-abiding? Follows orders? mental condition. Violent? Peaceful? Stable? The confinee’s service record, If the unit is to use conditions including any record of on liberty, those conditions are previous misconduct. often enforceable only by considering counseling moral suasion on the confinee. statements if part of the Is the confinee the kind of commander’s packet. The soldier that follows orders? Has the confinee been Soldiers who respond disciplined before? How did favorably to corrective action (s)he respond to corrective are less likely to engage in action? future misconduct. The confinee’s record of Is there evidence the confinee appearance at or flight from has missed appointments or other pretrial investigations, hearings? trials and similar proceedings. The likelihood the confinee This is a combination of a lot can and will commit further of other factors. criminal misconduct if allowed to remain at liberty pending trial? What other forms of restraint The commander is not have been tried, if any, and required to actually try lesser found to be ineffective? forms of restraint but the magistrate should not continue confinement unless lesser forms of restraint won’t work. If the unit has tried lesser forms of restraint, how did the confinee respond to them? If AWOL before being Was the AWOL terminated by confined, how did the confinee apprehension or did the come under military control confinee turn himself in. Is and how long was there evidence the AWOL was absent? a desertion or just cold feet. Does the confinee have a history of AWOL, desertion, FTRs? Does the case depend mainly on Documents that don’t change? on witness testimony rather Witnesses can. than documentary or physical evidence? Are the witnesses members of Does the confinee have access to the confinee’s unit, live in the to the witnesses? confinee’s barracks or have a common place of duty with the confine? What is the confinee’s reputation, if any, for violence, bribery, or false statements? Is there reliable information demonstrating threats or acts of violence against witnesses by or at the behest of the confinee? Has the confine violated conditions of any previously established no contact or protective orders? Sentencing Argument (Art and Law)