Friday, June 29, 2012

It's official - ITAC replaces the CLAC!

Today, TJAG approved the new, two-week format for the Criminal Law Advocacy Course.  The "new CLAC" will be a true, Intermediate Trial Advocacy Course (ITAC) that builds on the fundamentals now taught in JAOBC as well as the NPC/DC101 courses offered by TCAP and DCAP.
The course will be first offered in September and November of 2012.  For more information, go to our homepage!

Thursday, June 28, 2012

New law review articles

Brennan, Christopher R. Note. Katz cradle: holding on to Fourth Amendment parity in an age of evolving electronic communication. 53 Wm. & Mary L. Rev. 1797-1823 (2012).

Burg, Rachel. Note. Un-convicting the innocent: the case for Shaken Baby Syndrome review panels. 45 U. Mich. J.L. Reform 657-694 (2012).

Lexis/Nexis: Clark on 2012 UCMJ Article 120, effective 28 June 2012

The 2012 Article 120 takes effect today. Lexis/Nexis has just published Professor Jim Clark's take on the new law:

2012 Emerging Issues 6423, Clark on 2012 UCMJ Article 120, effective 28 June 2012

Monday, June 25, 2012

Review of The Invisible War

The Invisible War is a documentary about sexual assault in the military. The New York Times recently reviewed it, and Prof. Jim Clark of Crim. Law published a review in the Times as well.
The Times story is here: NYT Review .
Clark's Review is here: Clark Review (scroll down to #1 review)
That review is reproduced below:

The stories of soldiers featured in The Invisible War are tragic. These women served their country, and were betrayed by those who were supposed to protect them. The film ably demonstrates that sense of betrayal, and the emotional long-term pain caused by sexual assault. The apparent indifference or hostility of the command structure to these soldiers is blameworthy. The Times' labels the director a "muckraker." This apt label is not entirely pejorative. Muckraking often reveals previously unrecognized societal ills. Muckrakers, however, rarely attempt objectivity, and The Invisible War fits that pattern.

Info paper on SA withholding policy

OTJAG-CLD has posted an info paper on SecDef's sexual assault withholding policy to MilBook, available here.  You will need to login via your CAC.

Sunday, June 24, 2012

Another interesting Kahan article

Okay, I'm not a Prof. Kahan groupie, I promise.  His article, "Whose Eyes Are You Going to Believe: Scott v. Harris and the Perils of Cognitive Illiberalism," 122 Harv. L. Rev. 837, is also pretty interesting.

Homework for a future post

I just finished reading a book that has application to trial advocacy, but before I can blog on it, you need to take The Selective Attention TestClick here.  Spoiler alert -- don't scroll up or down when you get there, just click play and follow the instructions.  More to follow.

LTC Carpenter

Friday, June 22, 2012

Posts on Joint Service Committee

LTC Kennebeck from OTJAG-CLD is putting up a series of posts on the inner-workings of the Joint Service Committee on CAAFLog.  Click here to see the first post.

Tuesday, June 19, 2012

Double Helix Gets Two Thumbs Up Under the Confrontation Clause

Yesterday, the Supreme Court issued the long anticipated decision in Williams v. Illinois.  Despite the six month wait since argument in December, all the speculation was "much ado about nothing."  The court addressed another challenge to scientific reports and surrogate witnesses, this time to DNA profile evidence, under the 6th Amendment Confrontation Clause.  In a plurality opinion, the Court held that the surrogate's testimony did not violate the petitioner's rights because any testimony from the report was not offered for the truth but to explain how the expert arrived and her opinion.  Though the question addressed a state rule of evidence, it is nearly analogous to the federal rule and thus applicable to our practice.

"Survey Says...." Court Rules on Double Jeopardy Case- Blueford v. Arkansas

Ah, Double Jeopardy again... it's been kind of a hot topic lately, and I have to say that as someone who just pulled up a stool at the double jeopardy free-for-all, I find these cases rather interesting... I hope you do too. 

FACTS: Blueford was charged with capital murder for the death of his girlfriend's one year old son.  The judge gave the jury an "acquittal first" instruction - - meaning that he gave an instruction which informed the jury that if they (by unanimous vote) found Blueford not guilty of capital murder, then they would consider first degree murder, and if they found him not guilty of first degree murder, they would consider manslaughter, and so on, to include (at the end) negligent homicide.

Sunday, June 17, 2012

Sex assault on college campuses

Often, when we are discussing the sex assault problem in the military, people ask, "Well, what about college campuses?  How do we compare to them, and how does their response to the same problem match up to ours?"  In this article by Nancy Chi Cantalupo, you can find some answers.  This article, particularly the first two sections, is worth the read  College campuses are under scrutiny, too.

Here are some of the highlights:

Saturday, June 16, 2012

Trial advocacy and cultural cognition

In our last Graduate Course, we had our students read Prof. Kahan's article on how cultural cognition affects juror's perceptions of consent in non-stranger rape cases.  That article is available here: .  One of his main findings is that the text of the rape law doesn't matter.  (Maybe all the recent changes in Art. 120 don't really matter?)  Jurors and panel members will solve the consent problem that you give them based on their values first.  He calls this the "cultural cognition hypothesis," which is that they solve the problem based on values and law/facts.  This is very similar to Kalven and Zeisel's "liberation hypothesis."

According to the Cultural Cognition Project's website,, "Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities."

In this video of lecture given by Prof. Kahan, you will get a good overview of these principles.  The lecture is about 50-minutes long, and includes a discussion of how cultural cognition affects how people solve self-defense and consent issues. 

Friday, June 15, 2012

Um, read this, uh, post.

I'm sure at some point you have listened to a speaker discussing a riveting topic, only you can't pay attention to the subject matter because of the speaker's annoying "uh"s and "um"s.  Maybe you have even become so distracted that you start to count the number of annoying sounds by making tick marks on your paper (say it isn't so!).

This post:  Becoming Well-Spoken: How to Minimize Your Uh’s and Um’s by Brett & Kate McKay (yes, it's at The Art of has great advice and citation to some facinating sources and studies.  It's worth the read.

Here are a few tips that I think help (some of these are reflected in the Manliness post as well):

DUI: Attack on Breathalyzer for Short People Not Scientifically Supportable

At least one alcohol "expert" has been making the rounds claiming that breathalyzer results are not accurate for short people, because they have smaller lung capacity. A rebuttal of this theory was recently posted by Jim Wigmore, a Canadian alcohol expert, and author of (fittingly) Wigmore on Alcohol. Here it is:

Hlastala's Theories
Testing at low BACs make the error of breath testing seem greater. For example a variation of +/- 0.005 g/100mL shows an error of 50% at a BAC of 0.010 g/100mL but only 5% at a more forensically revelant BAC of 0.100 g/100mL.
Recently I have read some German research on this subject.

Thursday, June 14, 2012

Lautenberg does not violate the Second Amendment

Although I am unaware of a challenge to a Lautenberg-based discharge being brought in the military context,  caselaw since the SCOTUS decision in  District of Columbia v. Heller, 554 U.S. 570, 592 (2008) has limited the holding in that case far more than I would have expected. Heller made clear that the 2nd Amendment applied to individuals, not just to militias, and held that individuals have a constitutional right to possess firearms in their homes for self-defense purposes. Lautenberg, of course, bans ownership of any firearm to those convicted of a misdemeanor of domestic violence. The Army has extended that ban to felony DV convictions.
The Seventh Circuit has upheld Lautenberg against a Heller challenge; United States v. Skoien, 613 F.3d 648, 644 (7th Cir. 2010), as has the Eleventh Circuit.  United States v. White, 593 F.3d 1199, 1205–06 (11th Cir.2010). Thus far, no Circuit Court has disagreed.

Wednesday, June 13, 2012

Do our panel members suffer from thinking errors?

Here at the LCS, we focus on identifying thinking traps and biases that might affect how panel members solve the difficult problem you are about to give them to solve.  Here is an interesting article in the New Yorker by Johah Lehrer, the author of "How We Decide."

His argument is that smart people may actual fall into thinking and bias traps more readily than those who are not as smart.  We pride ourselves on our Blue Ribbon Panels, considering the members of our panels to be smarter and more educated that standard jury pools.  According to Lehrer, that might actually cause some problems.
LTC Carpenter

Tuesday, June 12, 2012


A recent study by two Texas A&M economics professors concludes that stronger self-defense laws lead to increased homicides.  [Copy of study can be found here.]  The study comes on the heels of publicity surrounding the Trayvon Martin case in Florida.  The UCMJ does not have a "castle doctrine" like Florida that grants immunity from prosecution in self-defense cases; however, military law does permit a person to stand his ground when he is at a place that he has a right to be (that is, a person does not lose the right to self-defense by failing to retreat).

LtCol Devin A. Winklosky, USMC
TJAGLCS Criminal Law Dept.

Monday, June 11, 2012

Updated Electronic Benchbook

A note from the Trial Judiciary: The latest version of the Electronic Benchbook (v1.7) is now on the Trial Judiciary website.  You can also find the latest version of the "Unofficial Benchbook" on the website.

These versions of the Benchbook contain changes through 12-01.

Saturday, June 9, 2012


So, you're a prosecutor who plans to charge the accused with attempt and conspiracy.  Ah, yes, those pesky anticipatory offenses -- such as Article 80 (attempt) or Article 81 (conspiracy) or even Articles 82 and 134 (solicitation) -- crimes where an accused moves so dangerously close to consummating an offense that the movement itself merits punishment even though the anticipated offense (also called the predicate or target offense!) is never actually committed.

The form of charging anticipatory offenses was the subject of CAAF's recent unanimous decision in United States v. Norwood, ___ M.J. ___ (C.A.A.F. 2012). [NMCCA decision here: United States v. Norwood, No. 201000495 (N-M. Ct. Crim. App. May 5, 2011)].

BLUF:  CAAF holds that "in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense;" however, the target offense must be alleged "so that an accused is aware of the nature of the underlying target or predicate offense."

Friday, June 8, 2012

"How to Ask Leading Questions" by Elliott Wilcox

During cross-examination, would you like to prevent witnesses from dodging your questions?  Would you like to tell a compelling story?  Do you want jurors to look to YOU for the answers during cross-examination?  If so, you need to develop your skill of asking leading questions.

This past summer, I taught a Trial Advocacy class at one of our local law schools.  It's always interesting to go back to law school because, among other things, you realize that you take certain skills and principles for granted.  But when you go back to the beginning, back to that time before you started to "think like a lawyer," you realize how much your thought processes have changed.

Army Directive 2012-14 - Prohibited Substances

On 29 May 2012, the Secretary of the Army signed a new directive that supersedes his memo from last year (10 Feb 2011) that prohibited Spice usage, possession, manufacturing, etc.

This new Directive prohibits use, possession, etc. of "any controlled substance analogue".  Specifically mentioned are Spice (synthetic cannabis), Bath Salts (derivatives of 2-aminopropanal), cathinone substitutes, and the cocaine analogue RTI 126.  It specifically excepts alcohol, tobacco, caffeine, lawfully used prescription medications, lawfully used over-the counter medications, and traditional "bath salt" or "epsom salt" products.

Lastly, the directive is effective immediately and will ultimately be published in an upcoming revision to AR 600-85.

A copy of this memorandum will be posted to this blog shortly.

Tuesday, June 5, 2012

"I'll take Double Jeopardy for 500 please, Alex." CAAF decides United States v. Easton

The opinion for United States v. Easton can be found at http://www/

In Easton, CAAF held that the double jeopardy protections as outlined in Article 44, UCMJ are constitutional, though they differ from the protections enjoyed by civilians.  To be specific, double jeopardy attaches, in a members trial, not when the panel members are sworn, but when evidence is presented.  The opposite is true in civilian trials.

Testing for Spice and Bath Salts

Currently, the DoD Drug labs do not test for Spice and Bath Salts.  The reasons for this are varied, but some of the common rationales includes: 1) costs; 2) the varied substances in each brand of Spice and Bath Salts are difficult to test for; 3) the chemical composition of Spice and Bath Salts are changing on a routine basis.

As a result, some units (and apparently the Navy as a whole, see this article) are sending samples to commercial drug testing labs that claim to be able to test for Spice and/or Bath Salts.  However, the results from these labs may not be admissible at trial to prove Spice or Bath Salt usage.

What do Bath Salts Really do to You?

Forbes just published an article on the risks associated with taking Bath Salts.  The answer isn't that a Zombie Apocalypse is upon us, but the risks to individual users are very high.

You can read the article here:

Monday, June 4, 2012

New law review articles

Democko, Breanne M. Social media and the rules on authentication. 43 U. Tol. L. Rev. 367-405 (2012).
Gilligan, Meghan. Note. It's not popular but it sure is right: the (in)admissibility of statements made pursuant to sexual offender treatment programs. 62 Syracuse L. Rev. 255-280 (2012).

Sunday, June 3, 2012

TED talk that applies to trial advocacy

This blog generally focuses on trial advocacy and updates in case law from an academic perspective.  It doesn't generally focus on leadership principles.  However, I thought I would provide a link to this TED talk by Simon Sinek on how great leaders inspire action, not for the leadership aspects so much, but because you can apply the basic system he presents to your approach to trial advocacy.

Saturday, June 2, 2012

Interesting trial advocacy article

Okay, so sometimes I am accused of being a hippie.  I graduated from Berkeley, do yoga with my Basic Course PT run group, and am the type of person made fun of by the writers of Portlandia.  But don't let that stop you from reading this article: "Integrating Mindfulness Theory and Practice into Trial Advocacy" by David Zlotnick.  Here is a link to the article:

This article is fairly hippie, but covers several things we teach in our trial advocacy blocks, to include breathing techniques and posture issues.

LTC Carpenter

New McElhaney article

McElhaney's latest article is on direct examination.  "DIRECT ANSWERS:  When You Examine a Witness, You're Really Telling a Story--So Make It a Good One."  Westlaw cite: 98-MAY ABAJ 22

“How to Avoid Gunfights During Cross-Examination” by Elliott Wilcox

If you were in the police academy, one of the most important things you would learn is how to keep safe when you're out on the street.  To stay safe, you'd want to learn how to prevent verbal confrontations from escalating into physical fights, and how to prevent physical fights from escalating into knifefights or gunfights.  As it turns out, one of the easiest ways to prevent situations from escalating to the next level is by keeping your emotional level lower than the perp's emotional level.  (One of the other things you learn in police academy is how to use cool words like "perp.")

Friday, June 1, 2012


The Chief Trial Judge of the Army Trial Judiciary recently approved Interim Update 12-02 to DA PAM 27-9 (Military Judges' Benchbook).  This update contains the discussion and advice a military judge should give to an accused addressing mental responsibility and competence issues during a guilty plea.

All of the interim updates to the Benchbook from 2009 through 2012 can be found here at the Army Trial Judiciary's website.  The website also contains an official copy of the current Benchbook and an unofficial copy incorporating all interim updates that can be found here.