Table Of Content

CRIMINAL LAW DESKBOOK Volume III Current as of 3 August 2012 Trial and Evidence The Judge Advocate General’s School, US Army Charlottesville, Virginia FOREWORD The Criminal Law Department at The Judge Advocate General's Legal Center and School, US Army, (TJAGLCS) produces this deskbook as a resource for Judge Advocates, both in training and in the field, and for use by other military justice practitioners. This deskbook covers many aspects of military justice, including Substantive Military Justice (Volume I), Pre- and Post-Trial Procedure (Volume II), Trial and Evidence (Volume III), and Special Topics in Military Justice (Volume IV). Military justice practitioners and military justice managers are free to reproduce as many paper copies as needed. The deskbook is neither an all-encompassing academic treatise nor a definitive digest of all military criminal caselaw. Practitioners should always consult relevant primary sources, including the decisions in cases referenced herein. Nevertheless, to the extent possible, it is an accurate, current, and comprehensive resource. Readers noting any discrepancies or having suggestions for this deskbook's improvement are encouraged to contact the TJAGLCS Criminal Law Department. Current departmental contact information is provided at the back of this deskbook. HOW TO USE THIS VOLUME This volume replaces The Advocacy Trainer. We owe a great debt to those before us who authored that groundbreaking publication. We designed this volume so that it can managers and practioners can grab it and train on short-notice. Use this in conjunction with the videos we have available for you on our webpage: https://www.jagcnet.army.mil/TJAGLCSCrimLaw. Watch a short video on the trial skill that you or your attorneys need to practice, read the short outline on that topic that is found in this volume, and then conduct the drills that are listed in the outline. The very best fact pattern to use is the fact pattern in the case that you or your counsel are currently working on. If you do not have a current case or otherwise want everyone to work on one fact pattern, use the United States v. Archie fact pattern that is found in this volume. This is the fact pattern that everyone is already familiar with. We use the United States v. Archie fact pattern our Basic Course, Intermediate Trial Advocacy Course, Advanced Trial Communications Course, Graduate Course, Military Justice Managers Course, and Military Judge Course. Your counsel will already know the facts well enough that they can rapidly jump into the drills without having to use up valuable brain energy and time trying to sort through new characters and new facts. CRIMINAL LAW DESKBOOK VOLUME III Table of Contents Case Construction* TAB A Trial Notebooks and Checklists TAB B Interviewing Witnesses TAB C Preparing Witnesses TAB D Negotiations* TAB E Motions TAB F Voir Dire and Challenges TAB G Opening Story TAB H Direct TAB I Using Evidence* TAB J Cross Exam TAB K Objections TAB L Experts* TAB M Instructions TAB N Findings TAB O Sentencing TAB P Arguments TAB Q Evidence TAB R Classified Evidence TAB S Confrontation Clause TAB T * Tab is currently under construction. See the CRIMINAL LAW DESKBOOK VOL. I (SUBSTANTIVE MILITARY JUSTICE) for: pleadings, scope of criminal liability, inchoate offenses, military offenses, conventional offenses, and defenses. See the CRIMINAL LAW DESKBOOK VOL. II (PRE AND POST TRIAL PROCEDURE) for: overview of the military justice system, unlawful command influence, professional responsibility, Victim/Witness Assistance Program (VWAP), SHARP & domestic abuse, jurisdiction, nonjudicial punishment – Article 15, UCMJ, summary court, speedy trial, pretrial restraint and pretrial confinement reviews, self- incrimination, right to counsel and IAC, search and seizure, discovery, Article 32, pretrial advice, pretrial agreements, court-martial personnel, production, pleas, post-trial, appeals and writs, post-conviction, and double jeopardy. i See the CRIMINAL LAW DESKBOOK VOL. IV (SPECIAL TOPICS IN MILITARY JUSTICE) for: cyber law, urinalysis, sexual crimes and domestic violence, commissions, protection of military installations/SAUSA, media, capital litigation, and mental responsibility, competence, and sanity boards. ii CASE CONSTRUCTION TAB A Is Currently Under Construction TRIAL SYSTEMS AND CHECKLISTS Table of Contents I. INTRODUCTION...............................................................................................................1 II. ORGANIZATION ..............................................................................................................1 III. WITNESSES .......................................................................................................................1 IV. EXHIBITS ...........................................................................................................................3 V. PRE-TRIAL MOTIONS ....................................................................................................3 VI. DISCOVERY.......................................................................................................................3 VII. LIST OF APPENDICES ....................................................................................................4 MAJ Sean Mangan August 2012 Vol. III B-i THIS PAGE INTENTIONALLY LEFT BLANK Vol. III B-ii TRIAL NOTEBOOKS AND CHECKLISTS Few things are brought to a successful issue by impetuous desire, but most by calm and prudent forethought. —Thucydides I. INTRODUCTION A. Welcome to criminal trial advocacy! As students of trial advocacy, you are studying one of the most exciting and rewarding areas in the legal profession. As a courtroom advocate, you will find yourself at the center of the intersection of statutory and c ase law, procedural and evidentiary rules, written and oral argument, emotion of various types and drama. Trial advocacy often can be a head-spinning experience for the new and experienced advocate alike. As has been aptly said, “trying a case can be a trying experience.” Yet the pre-trial process and trial itself can be tamed into a logical, methodical and manageable process. Each trial advocacy student is provided a range of tools (checklists, outlines, sample questions), which, with sufficient organization and preparation, can maximize the chances of a successful outcome. II. ORGANIZATION A. Whether as Trial Counsel or Defense Counsel, the goal of the trial advocate is hardly attainable without careful and thorough planning and organization. A well-organized trial demonstration will not guarantee the desired outcome, but it certainly enhances your credibility with your audience and the chances of prevailing. Indeed, the presiding judge, the jury, and client expect it. Moreover, judges abhor surprises and neither the presiding judge nor the jury have much tolerance for any delay caused by an unprepared trial attorney. B. Instead, each trial advocate should strive to be the one person in the courtroom to whom the judge and the jury looks for a trusted and most accurate picture of the facts, the law, and the rules of evidence. To get there, each trial advocate will develop a unique pre-trial organization method. All trial advocates are strongly encouraged, however, to thread common, proven steps into the pre-trial organization procedure. The Criminal Trial Advocacy student is provided very helpful tools to guide the pre-trial organization, and the checklists (e.g., Trial Counsel Checklist, Defense Counsel Checklist, Expert Witness Checklist) are among the most useful. The final pretrial result will be an understandable and credible presentation of evidence elicited from witness testimony and from exhibits. III. WITNESSES A. Witnesses generally come in three forms: professional (e.g., law enforcement), lay/civilian (e.g., victim, eye witness), and expert (e.g., chemist, fingerprint analyst). In addition, a witness can be favorable to your case or hostile. A trial advocate can follow steps and checklists to evaluate the credibility of a witness (e.g., knowledge, bias, education and training); determine whether the witness is essential or non-essential or, if essential, whether the witness testimony will be most effective in the case-in-chief or in rebuttal; and to prepare a witness to testify on the witness stand. There are a few key differences in each type of witness that will dictate how each will be prepared for testimony. Vol. III B-1