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Some quick on CCA opinions of interest AFCCACooley is a useful refresher on prior consistent statements. Review is for an military judge’s decision to admit evidence for an abuse of discretion. Mil. R. Evid. 801(d)(1)(B) provides that a statement is not hearsay if it “is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” "The United States Court of Appeals for the Armed Forces (CAAF) has identified three criteria for out-of-court statements to be admissible as a non-hearsay prior consistent statement under Mil. R. Evid. 801(d)(1)(B)(i): “(1) the declarant of the statement must testify and must be subject to cross-examination about the prior statement; (2) the statement must be consistent with the declarant’s testimony; and (3) the statement must be offered ‘to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying.’” And, “the prior statement . . . must precede any motive to fabricate or improper influence that it is offered to rebut,” and “where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut.” The prior consistent statement need not be identical to the witness’s testimony in order to be admissible, provided it is “for the most part consistent” and “consistent with respect to . . . fact[s] of central importance to the trial.” The military judge did not abuse her discretion. Ingram is another case where a plea is found improvident because the Appellant made statements that undercut the plea and which the military judge did not resolve.
A new article revisits the issue of limited peremptory challenges at court-martial.
MAJ Joshua R. Storm, Voir Dire, Voir Dire, Everywhere, But Not a Strike to Spare: A Defense-Focused Proposal to Increase Peremptory Challenges in Military Capital Cases. 231 Mil. L. Rev. 579 (2025). See also, Victor Hansen, Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military. 44 Chrieton L. Rev. (2011); a bit of a broader view of member selection but with a focus on peremptory challenges. Appellant was convicted in 2019, contrary to his pleas, of sexual abuse of a child in violation of Article 120b, Uniform Code of Military Justice (UCMJ). This case is before us again following remand by the Court of Appeals for the Armed Forces (CAAF) in July 2022 and an extensive fact-finding process described further below. The issue here is whether the military judge’s denial of Appellant’s discovery motion seeking production of the complaining witness’s mental health records materially prejudiced Appellant at trial. Appellant asserts that the erroneous denial of production of the complaining witness’s mental health documents deprived him of the right to present a complete defense. We disagree The CAAF daily journal for 22 July 2025 shows a cleaned-out trailer park on the 18 U.S.C. 922 gun issue. No. 24-0049/AF. U.S. v. S'hun R. Maymi. CCA 40332. On further consideration of the granted issues, 84 M.J. 308 (C.A.A.F. 2024), and in view of United States v. Johnson, __ M.J. __ (C.A.A.F. 2025), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed. United States v. ParkThe Court found no need to grant relief on four assigned errors. However, the Court found three of Appellant's Grosty issues merited discussion and his claim of factual insufficiency warranted relief, including a slight reduction in his confinement. 1. On appeal, appellant raised the military judge's suppression ruling as an assigned error, indicating a belief that the motion to suppress was preserved for purposes of the contested larceny charge and for the firearm identified in the Article 92 violation. Appellant also raised in Grostelon matters the voluntariness of his plea, ineffective assistance of counsel, and factual sufficiency. The IAC issue was mooted by the court's finding of factual insufficiency to the relevant charges. As to the factual sufficiency of larceny, the Court found that, When considering the entire record, we are not convinced of appellant's guilt to the greater offense of larceny beyond a reasonable doubt. Therefore, regarding the Specification of Charge IV, we shall affirm only so much of the guilty finding as is consistent with appellant's guilty plea to the lesser included offense of wrongful appropriation. He got a little love on his confinement after the Court's reassessment.
NIMJ is excited to announce it is accepting submissions for three writing awards for papers and articles published in the last year.
First, NIMJ is accepting submissions by law students for the Rear Admiral John S. Jenkins Writing Award. This award is presented to the best-nominated paper written by a law student on a military legal topic. The award is named for Rear Admiral John S. Jenkins, the 28th Judge Advocate General of the Navy and co-founder of NIMJ. The award carries a $250 prize. NIMJ is also accepting submissions for its Kevin J. Barry Writing Award for Excellence for Practitioners and Scholars. This award honors an outstanding scholarly article on a military legal topic written by an academic or practitioner. The award is named for Captain Kevin Barry, USCG. CAPT Barry was a co-founder and longtime director of NIMJ. The award carries a $250 prize. Lastly, NIMJ is accepting submissions for the Dr. Evan R. Seamone Memorial Veterans’ Excellence Award. This award honors excellence in the field of advancing veterans’ rights demonstrated through a scholarly article, major litigation, or substantial advocacy work that occurred in a particular calendar year. This award carries a $250 prize. Submissions should be sent to NIMJ ([email protected]) by 31 August 2025. For more information about these three awards, please visit https://www.nimj.org/prizes.html#/ Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms: A Proposed Rule by the Justice Department. FR Document: 2025-13765, 07/22/2025. The Department of Justice (“the Department”) proposes to implement criteria to guide determinations for granting relief from disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms. In accordance with certain firearms laws and the Second Amendment of the Constitution, the criteria are designed to ensure the fundamental right of the people to keep and bear arms is not unduly infringed, that those granted relief are not likely to act in a manner dangerous to public safety, and that granting such relief would not be contrary to the public interest. In Mooty, AFCCA sets aside the findings and sentence because it specified the following issue: (3) whether, in light of Hemphill v. New York, 595 U.S. 140 (2022), the military judge violated Appellant’s Sixth Amendment right to confrontation by admitting testimonial hearsay after finding the Defense opened the door to the admission of the evidence, and if so, whether Appellant is entitled to relief. [An] error that materially prejudice[d] Appellant’s substantial rights. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). United States v. PattersonThis case is a bit of an oddity because "The AFCCA found that the Government had not proved beyond a reasonable doubt that the incident occurred “between on or about October 1, 2015, and on or about November 1, 2015,” as alleged in the specification." Thus, the conviction was set aside as factually insufficient. How many times have we read that using the "on or about" language usually cures a wide variation in what the charged dates are and what the actual evidence shows? Writing for a unanimous Court, Judge Maggs observes that, Disagreeing with [AFCCA decision], the Judge Advocate General of the Air Force certified the following issue to this Court: “Where time was not an essential element of the offense, did the Air Force Court of Criminal Appeals err by finding factual insufficiency based on a discrepancy between the dates pleaded and the dates proved, when it should have applied a variance analysis and found a non-fatal variance instead?” We answer the certified question in the negative and affirm the decision of the AFCCA. It appears that the government found itself in this predicament early in the case, during the charging decision, and apparently, in failing to see the evidence may not align too well with the specification. To prove the allegations the Government called the named victim who testified that her stepfather, penetrated her vulva with his fingers at their home in South Carolina. [S]he was uncertain of the exact date of the incident but believed that it occurred in “roughly [the] spring/summer of 2015” when the weather was warm. She also testified that her mother was “probably five [or] six months” pregnant at the time of the offense. In addition, she testified that the incident occurred before the end of September when her brother was born. The Government presented no evidence that the incident occurred between October 1, 2015, and November 30, 2015. We are left wondering how the Government missed that likely discrepancy when doing the charge sheet or at the Article 32, preliminary hearing or in the SJA advice. The Court gives some helpful training suggestions on that. Although we do not grant relief in this appeal, we note that potential problems concerning dates alleged in a specification often can be addressed and avoided before a case reaches appellate review. As an initial matter, specifications of course should be carefully drafted so that they conform to the anticipated evidence. And if the government’s understanding of the evidence changes after a specification has been drafted, the government might seek to change the specification under R.C.M. 603 or withdraw the specification under R.C.M. 604 and then replace it. The government also could ask the military judge to instruct the panel members on findings by exceptions and substitutions as is permitted under R.C.M. 918. But here, the Government declined to take any of these corrective steps despite being aware of the discrepancy between the specification and evidence presented at trial. The Court discusses the different legal approaches Issues relating to the dates alleged in a specification have come before this Court in several contexts. For example, this Court has been asked to review whether an attempted amendment to the dates alleged in a specification after the Government rested was an improper “major change” under Rule for Courts-Martial (R.C.M.) 603(d)(2). |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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