Litigator Libations
The Air Force DCAP providing updates and tips on defensive litigation in military justice including discussing recent appellate decisions and advocacy tips.
Episodes
71 episodes
71 - United States v. Strong and Undue Influence
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...
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Season 4
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Episode 71
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27:41
70 - H.V.Z v. United States and Lt Col Ghiotto on Hearsay
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 wh...
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Season 3
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Episode 70
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42:49
69 - United States v. Grijalva (Preemption Doctrine & First Amendment Issues)
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 m...
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Season 3
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Episode 69
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33:43
68 - Diaz v. United States and R.C.M. 913(c) (Viewings and Inspections)
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 t...
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Season 3
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Episode 68
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43:58
67 - US v Keago, US v Metz, Smith v Arizona, and US v. Rahimi
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...
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Season 3
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Episode 67
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41:08
66 - US v Cole, US v. Moore, and Article 58a
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 mo...
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Season 3
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Episode 66
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42:08
65 - US v. Wilson and Witnesses Who Take the Fifth
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 t...
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Season 3
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Episode 65
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39:23
64 - US v. Rocha and Breaking Down the Charges
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 t...
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Season 3
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Episode 64
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42:50
63 - US v McNulty (NMCCA); US v. Csiti (AFCCA); and Expanded Appellate Rights
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...
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Season 3
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Episode 63
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30:09
62 - In re B.M. and Starting Your Sentencing Argument
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 i...
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Season 3
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Episode 62
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43:18
61 - US v. Palik and the Relevance and Use of "Not Hearsay" Statements
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 ...
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Season 3
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Episode 61
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37:40
60 - U.S. v. Driskell and Getting Concessions on Cross-Examination
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 r...
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Season 3
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Episode 60
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40:47
59 - United States v. Ramirez and the New Rules for Victim Impact Statements
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 d...
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Season 3
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Episode 59
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32:10
58 - In re RW; Maximizing MRE 412; and Firearm Prohibition Update
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 requi...
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Season 3
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Episode 58
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31:16
57 - United States v. Buhl (ACCA) and an Elements Checklist
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 abuse...
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Season 3
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Episode 57
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37:27
56 - Smith v. Arizona and Sentencing Cases
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 ...
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Season 3
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Episode 56
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35:51
55 - United States v. Harborth (N-MCCA) and Firearm Prohibitions
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...
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Season 3
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Episode 55
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36:59
54 - Victim Status under Article 6b and Impeachment with a Newspaper Article
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 c...
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Season 3
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Episode 54
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28:20
53 - Executive Order 14103 and Expert Witnesses
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 witnes...
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39:26
52 - United States v. Brown and Victim Writs
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 t...
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Season 3
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Episode 52
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34:07
51 - United States v. Warda and Character Evidence
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 s...
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Season 3
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Episode 51
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28:09
50 - United States v. Cabuhat & Refreshing Recollection v. Impeachment
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 ...
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Season 3
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Episode 50
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43:27
49 - United States v. Harrington and Voir Dire; The Intro
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 counse...
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Season 3
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Episode 49
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34:10
48 - United States v. Jeter and Obtaining Appellate Defense Counsel
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...
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42:01
47 - US v Anderson; US v Smith; and The Clergy Privilege
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 argument...
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Season 2
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Episode 47
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46:28