Litigator Libations

Send us Fan MailOn this week's episode, Sam and Trevor tackle the CAAF's most recent decision on the good faith exception: United States v. Johnson, No. 25-0202/AF, 2026 CAAF LEXIS 464 (C.A.A.F. May 26, 2026). Before diving into that case, though, the duo discuss a new Supreme Court case on Batson challenges: Pitchford v. Cain, No. 24-7351, 2026 U.S. LEXIS 2296 (May 28, 2026). There, the Supreme Court reversed the Fifth Circuit, concluding that a criminal defendant has the right under Batson to have the trial judge fully analyze a Batson claim once a prima facie showing is made. The two then turn to Johnson. There, the CAAF held that the good faith exception applies so long as a judge advocate advises law enforcement/the search authority that there is probable cause (even when there is no probable cause…). For this, the CAAF relied heavily on United States v. Perkins, 78 M.J. 381 (C.A.A.F. 2019), where the CAAF found the good faith exception applies whenever search authorities rely on the advice of government lawyers. The CAAF also relied on United States v. Leon, 468 U.S. 897 (1984), a Supreme Court case discussing the good faith exception, Mil. R. Evid. 311, which incorporates Leon's test, and United States v. Hernandez, 81 M.J. 432 (C.A.A.F. 2021).This expansive view of the good faith exception draws the ire of both Sam and Trevor, as well as Chief Judge Ohlson, who writes a powerful dissent. Referencing the problems highlighted in United States v. Lattin, 83 M.J. 192 (C.A.A.F. 2023), Chief Judge Ohlson emphasized that “it is judicially necessary to penalize reckless or grossly negligent government behavior. . . . Otherwise, we should not be surprised if government investigators come to believe that there will be no negative consequences if they fail to comply with the rule of law.”Please send your questions, comments, or concerns to [email protected]. We look forward from hearing from you!

Send us Fan MailPrior consistent statements strike again in this week’s episode as Sam and Trevor discuss United States v. Brown, __ M.J. __, 2026 CAAF LEXIS 418 (C.A.A.F. 2026).With prior consistent cocktails in hand, the duo review the CAAF’s recent decision analyzing Mil. R. Evid. 801(d)(1)(B)(ii), the rule covering prior consistent statements offered on “other grounds.” A majority of the court found that a military judge did not abuse his discretion when he admitted a prior consistent statement from the complaining witness. This is because trial defense counsel attacked her credibility on “other grounds,” i.e., her “inconsistency,” thereby opening the door for admission of the prior consistent statements. As Sam and Trevor explain, this new(ish) rule under (B)(ii) runs the risk of having the exception swallow the rule. As the Chief Judge says in his concurrence, this is the “mischief” lurking behind the court’s Brown opinion.During this episode, Sam and Trevor reference Episode 97, which covered United States v. Ruiz, 86 M.J. 75 (C.A.A.F. 2025), cert. denied, 146 S. Ct. 993 (2025). They also discuss the differences between Mil. R. Evid. 801(d)(1)(B)(i) and (B)(ii) and the specific applications of United States v. Frost, 79 M.J. 104 (C.A.A.F. 2019), United States v. Finch, 79 M.J. 389 (C.A.A.F. 2020), and United States v. Ayala, 81 M.J. 25 (C.A.A.F. 2021). They end with some helpful practice tips about how to limit the impact of Brown and a brief remark about utilizing the Benchbook instruction for inconsistent statements.As always, please send any comments, questions, or concerns to [email protected] 

Send us Fan MailThis week, Sam and Trevor focus on United States v. Kershaw, No. 25-0177/AF, 2026 CAAF LEXIS 396 (C.A.A.F. Apr. 30, 2026), another divided Court of Appeals for the Armed Forces (CAAF) decision. Before diving into Kershaw, Sam briefly highlights that the portions of the Manual for Courts-Martial that were changed in Annex 2 of Executive Order (EO) 14103 apply to offenses that occurred after December 27, 2023 (the other Annexes in this EO have different effective dates). She discusses this effective date in the context of panel randomization under RCM 911. Specifically, the plain text applying this rule change contradicts the Military Judge's Electronic Benchbook and the Air Force Instructions (which themselves conflict too): neither arraignment nor referral date dictate when the new randomization rule applies. The offense date does. Thus, keep an eye out for which rules apply when; Annex 2's application is a little odd! If you disagree or have seen something different in practice, please let us know! Following that discussion, the two walk through the Kershaw decision. In Kershaw, the CAAF holds that a Court of Criminal Appeals can affirm a conviction by using "variance," even when the trier of fact did not do so. The duo explain how CAAF's precedent, and the text, don't conform with that reading. They go on to provide some hopefully helpful tips for trial practitioners in light of the CAAF's new rule, but are cognizant of the new territory charted by the Kershaw decision. Send us your questions, comments, or concerns at [email protected].

Send us Fan MailThis week, Sam and Trevor discuss a new Court of Appeals for the Armed Forces (CAAF) case, United States v. Washington, No. 25-0044, 2026 CAAF LEXIS 353 (C.A.A.F. Apr. 13, 2026), and then feature a trial-level practitioner, Raquel Musconi, to discuss post-trial motions. Before jumping into both, the pair cover a quick update to United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 189 (A.F. Ct. Crim. App. Apr. 17, 2026). The Air Force Court of Criminal Appeals issued a new opinion, but not much changed. Check out Episode 100 for a refresher!Sam and Trevor then discuss Washington. The CAAF found that the military judge abused their discretion when they determined the conduct leading up to the alleged sexual assault fell under Military Rule of Evidence 412. In coming to this conclusion, the CAAF seems to expand the realm of res gestae and the meaning of “surrounding circumstances” for sexual assault offenses. The CAAF also seems to cast doubt on United States v. Erikson, 76 M.J. 231 (C.A.A.F. 2017), the case analyzing false sexual assault claims under Rule 412. After resolving the Rule 412 issue, the CAAF tackled the military judge’s decision to strike most of the appellant’s testimony. The CAAF found that the military judge abused their discretion again, highlighting that this extreme remedy was not appropriate. While talking about this, Trevor references several state cases, including State v. Mende, 304 Ore. 18 (Or. Sup. Ct. 1987), to explain why the caselaw the Government and the dissent rely on is unpersuasive.Raquel finishes the episode with post-trial motions, specifically related to confinement conditions.Send us your questions, comments, and feedback at [email protected]!

Send us Fan MailThis week, Sam and Trevor cover two cases, United States v. Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343 (C.A.A.F. Apr. 8, 2026), and United States v. Talley, No. ACM 40828, 2026 CCA LEXIS 171 (A.F. Ct. Crim. App. Apr. 9, 2026). In Braum, another divided Court of Appeals for the Armed Forces (CAAF) found there was no prejudice when the Government refused to turn over the complaining witness’s cellphone extraction in its possession, custody, or control. The duo lament how the lead opinion did not answer whether the military judge erred by failing to order disclosure of the phone to the defense. But the two are hopeful that the CAAF may soon answer that question in United States v. Wicks, __M.J.__, No. 26-0062/AR, 2026 CAAF LEXIS 302 (C.A.A.F. Apr. 3, 2026). In better news, the Air Force Court of Criminal Appeals found that the military judge abused his discretion by excluding evidence under Mil. R. Evid. 412 and set aside the finding of guilt for a sexual assault conviction. As Sam and Trevor explain, both cases deal with complaining witnesses turning their rights into a sword against the accused and what trial defenders can do to disarm such “chutzpa[dik]” witnesses. See Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343, at *28 (Ohlson, C.J., dissenting) (labeling the colloquial terms for the victim’s approach as “chutzpah”).Note: We apologize for any audio issues you may notice during listening. We are aware of the microphone issues and are working to fix it for future episodes. As always, we welcome your questions, comments, and feedback at [email protected]!

Send us Fan MailThe case you've all been waiting for! *drumroll please* United States v. Rocha, No. 25-0157, 2026 CAAF LEXIS 254 (C.A.A.F. Mar. 16, 2026), the child-like sex doll case, is back and finally resolved! This week, Sam and Trevor spend most of the time breaking down the various opinions in Rocha. Spoiler alert: the CAAF affirms the lower court's decision to set aside the conviction, but perhaps not in the way you'd expect. While the CAAF doesn’t address the liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), Sam and Trevor do. While talking about liberty interests, they also discuss United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013). After tackling what is sure to be the most controversial decision of the CAAF term, the duo turn to United States v. Hurtado, No. 25-0212, 2026 CAAF LEXIS 273 (C.A.A.F. Mar. 23, 2026). There, the CAAF found that the appellant's rights invocation was clear and unequivocable, despite the law enforcement agent, the lower court, and two CAAF judges thinking otherwise...I'd like my lawyer, dawg, now please. See State v. Demesme, 228 So. 3d 1206 (La. 2017) (finding that requesting a "lawyer dog" was an ambiguous invocation).    As always, we welcome questions and comments from our fans at [email protected].

Send us Fan MailOn this week's episode, Sam and Trevor focus on a recent case from the Supreme Court, Villarreal v. Texas, 2026 U.S. LEXIS 1103 (U.S. 2026). Villarreal explains the limits on how and when a judge can prevent a testifying defendant from talking to his or her attorney during a recess. The Supreme Court discusses two major cases in resolving this issue: Geders v. United States, 425 U. S. 80 (1976), and Perry v. Leeke, 488 U. S. 272 (1989). Following their discussion about Villarreal, Sam and Trevor turn to a recent Navy-Marine Corps Court of Criminal Appeals case, United States v. Gonzalez, No. 202500333, 2026 CCA LEXIS 115 (N-M Ct. Crim. App. Mar. 6, 2026). There, the duo discusses how old sentencing tips remain valuable even after the changes to Article 66, UCMJ, that turned appellate "sentence appropriateness" review into an assessment over, amongst others, whether a sentence is "plainly unreasonable."  Questions, comments, feedback? Email us at [email protected]!

Send us Fan MailThis week, Sam and Trevor start off by answering a listener question about one of last episode’s cases: United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026). After a brief recap and debate, the two tackle United States v. Matti, No. 25-0148, 2026 CAAF LEXIS 189 (C.A.A.F. Feb. 17, 2026), a recent Court of Appeals for the Armed Forces (CAAF) decision on improper argument. Matti reveals the frustration of the CAAF judges, who appear tired of repeatedly dealing with the same improper arguments by Government counsel. To educate the field, the CAAF published an appendix to Matti, which un-exhaustively lists twenty-two improper arguments, and encouraged all military judges and counsel to read the appendix to protect against future errors. But a week after Matti, the Air Force Court of Criminal Appeals issued United States v. Kindred, No. ACM 40607 (f rev), 2026 CCA LEXIS 87 (A.F. Ct. Crim. App. Feb. 24, 2026). In this case, the Air Force Court seemingly disagreed with the CAAF’s determination that certain arguments were improper. Sam and Trevor discuss Kindred and how the Air Force Court got it right for at least one improper argument that implicated constitutional rights, but got it wrong for others.       Questions, comments, concerns? Send them our way at [email protected]! (Since, apparently, we can’t respond to Buzzsprout fan mail immediately…)

Send us Fan MailThis week, Sam and Trevor tackle two cases that foretell the risks of prioritizing expediency over process. First, after eight years, United States v. Jacinto, No. 24-0144, 2026 CAAF LEXIS 116 (C.A.A.F. Feb. 2, 2026), comes to end. This case went up and down on appeal due to a denied continuance and in camera review request concerning medical records disclosed on the “eve” of trial. While the Court of Appeals for the Armed Forces (CAAF) found the denied continuance harmless, this case should be in any trial practitioner’s back pocket when seeking a continuance. Second, the duo debate United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026), a published Navy-Marine Corp Court of Criminal Appeals case that addresses how convening authorities can refer what looks like a covered offense after the Office of Special Trial Counsel defers prosecution…so long as it’s not labeled as “a covered offense.” Sam and Trevor’s spirited debate ends with a reminder about ensuring jurisdiction in each case and testing the bounds of Kruse. Questions, comments, concerns? Send them our way at [email protected]!

Send us Fan MailThis week, Sam and Trevor discuss four of the latest Court of Appeals for the Armed Forces opinions. The first case they cover is United States v. Malone, No. 25-0140, 2026 CAAF LEXIS 62 (C.A.A.F. Jan. 20, 2026), which addresses how defense counsel can waive multiplicity issues. But the CAAF’s reasoning also strongly suggests that ineffective assistance of counsel claims may increase following this decision. The second case the duo covers is United States v. Moore, No. 25-0110, 2026 CAAF LEXIS 73 (C.A.A.F. Jan. 23, 2026), which is the latest installment of the Mendoza-Casillas saga. Moore is one of three cases that the CAAF decided, which appear to, once again, limit the once-powerful reach of United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024). See United States v. Casillas, 86 M.J. 94 (C.A.A.F. 2025) (tailoring Mendoza to a sexual assault case that included sleep). The other two cases the CAAF decided with Moore are United States v. Serjak, No. 25-0120, 2026 CAAF LEXIS 74 (C.A.A.F. Jan. 23, 2026), and United States v. Hennessy, No. 25-0112, 2026 CAAF LEXIS 72 (C.A.A.F. Jan. 23, 2026). While Sam and Trevor focus on Moore because it espouses three "new" legal principles for sexual assault cases without consent, all three cases provide insight into how Article 120(b)(2)(A), UCMJ, cases may evolve.As always, send us your comments or questions to [email protected].

Send us Fan MailFor the 100th episode of Litigator Libations, Sam and Trevor keep it short and sweet. They discuss two recent decisions. First, they talk about Case v. Montana, No. 24-624, 2026 U.S. LEXIS 432 (Jan. 14, 2026), from the Supreme Court. Case reaffirms Brigham City v. Stuart, 547 U.S. 398 (2006), which discussed the proper test for the emergency assistance exception to the warrant requirement, but addresses it in the context of a suicide attempt. Second, they discuss United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 6 (A.F. Ct. Crim. App. Jan. 16, 2026), from the Air Force Court of Criminal Appeals. Based on United States v. Jones, 66 M.J. 704 (A.F. Ct. Crim. App. 2008), and United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999), Marschalek reaffirms that preemption cannot be waived by a guilty plea. As always, feel free to reach out with questions or comments at [email protected].

Send us Fan MailHappy New Year, everyone! This week, Sam and Trevor cover two cases where the Court of Appeals for the Armed Forces (CAAF) analyzes the purported arbitrary application of military rules of evidence. The first is United States v. Maebane, No. 24-0196, 2025 CAAF LEXIS 772 (C.A.A.F. Sep. 18, 2025). In this 3-2 decision, the CAAF overturned a conviction where a third party’s confession was ruled inadmissible under Military Rule of Evidence 807. The duo dissects the detailed facts to show how and why the CAAF reached the decision it did. During their discussion, they talk about two Supreme Court cases: Chambers v. Mississippi, 410 U.S. 284 (1973), and Holmes v. South Carolina, 547 U.S. 319 (2006). The second case they discuss is United States v. Miller, No. 25-0025, 2025 CAAF LEXIS 803 (C.A.A.F. Sep. 24, 2025). In this 4-1 decision, the CAAF held that Military Rule of Evidence 412 hearings must be closed and that military judges need not hold an open hearing to decide whether, on the facts of the case, the hearing ought to be closed. Sam and Trevor also highlight the dissent and draw parallels between Miller and the Supreme Court’s recent decision in Pitts v. Mississippi, 223 L.Ed.2d 151 (U.S. 2025). As always, feel free to reach out with questions or comments at [email protected].

Send us Fan MailIn their last episode of 2025, Sam and Trevor discuss all things waiver. There are four cases on the agenda, so buckle-up! First, United States v. Arroyo, 2025 CAAF LEXIS 688 (C.A.A.F. Aug. 19, 2025), which deals with how and why an appellate court can consider that an appellant got the “benefit of the bargain” from a plea agreement during its sentence appropriateness analysis. Second, United States v. Cook, 2025 CAAF LEXIS 726 (C.A.A.F. Aug. 28, 2025), which covers how an accused can waive the maximum punishment calculation. Third, United States v. Suarez, 2025 CAAF LEXIS 651 (C.A.A.F Aug. 5, 2025), which holds that unlawful command influence can be waived. And, finally, United States v. Batres, 2025 CAAF LEXIS 755 (C.A.A.F. Sep. 9, 2025), which grapples with the meaning of “transaction” under Rule for Courts-Martial 1002(d)(2)(B)(i). A few other cases that come up during their discussion are United States v. Brown, 2025 CAAF LEXIS 691 (C.A.A.F. Aug. 20, 2025) (granting review), United States v. Cole, 84 M.J. 398 (C.A.A.F. 2024), and United States v. Baker, 14 M.J. 361 (C.M.A. 1983), abrogated on other grounds by United States v. Teters, 37 M.J. 370 (C.A.A.F. 1993). The briefs for Brown are available here: https://www.armfor.uscourts.gov/GrantedCasesBriefs.htmAfter covering all these cases, the duo are taking a quick break and will see everyone again after the New Year! Happy Holidays! In the meantime, you can always email us with questions or comments at [email protected].

Send us Fan MailHappy Thanksgiving! This week, Sam and Trevor tackle United States v. Gonzalez, 2025 CAAF LEXIS 761 (C.A.A.F. 2025), and United States v. Ruiz, 2025 CAAF LEXIS 656 (C.A.A.F. 2025). While both cases have some interesting facts, they also have big takeaways for trial practitioners. In Gonzalez, we see the first effects of United States v. George, 85 M.J. 133 (C.A.A.F. 2024), where the parties’ interpretations of the specification at trial trump arguments on appeal. For Ruiz, prior consistent statements under MRE 801(d)(1)(B)(ii) seem to be expanded outside the narrow path articulated in United States v. Finch, 79 M.J. 389 (C.A.A.F. 2020). Now part of a circuit split, Ruiz is petitioning SCOTUS on this issue, so keep an eye out for any developments dealing with whether SCOTUS will extend Tome v. United States, 513 U.S. 150 (1995), to this category of prior consistent statements. The full Petition for Writ of Certiorari is available at: https://www.supremecourt.gov/DocketPDF/25/25-561/383633/20251105123311855_Ruiz%20v.%20United%20States%20Petition%20for%20Writ%20of%20Certiorari.pdf.If you have any questions or listener comments, please email us at [email protected].

Send us Fan MailThis week, Sam and Trevor tackle United States v. Downum, __ M.J. __, No. 24-0156/AR, 2025 CAAF LEXIS 828 (C.A.A.F. Sep. 30, 2025). Well, sort of.In Downum, the CAAF makes an interesting point about what is required to invoke the permissive inference for unlawful use of a controlled substance under Article 112a, UCMJ. The CAAF seems to imply that the Government “must” present certain evidence to get the permissive inference. But this appears to change decades of case law on how the permissive inference works in "naked UA" cases (i.e., when the only evidence of drug use is from the urinalysis test). The duo discuss the history of the permissive inference, spanning United States v. Campbell, 50 M.J. 154, 160 (C.A.A.F. 1999) (aka Campbell I), United States v. Campbell, 52 M.J. 386, 388 (C.A.A.F. 2000) (aka Campbell II), and United States v. Green, 55 M.J. 76, 80 (C.A.A.F. 2001), before ending up back at Downum with some practice tips and advice for trial litigators. As always, feel free to email the nerds with any feedback, thoughts, questions, or legal conundrums at  [email protected].

Send us Fan MailNothing is spookier this Hallow’s Eve than the Government failing to provide evidence to criminal defendants. In their Halloween special, Sam and Trevor untangle the web that is United States v. Secord, __ M.J. __, 2025 CAAF LEXIS 646 (C.A.A.F. 2025), a case about digital data and R.C.M. 701 possession. Then, they turn to a case straight out of the twilight zone, United States v. Roan, __ M.J. __, 2025 CAAF LEXIS 760 (C.A.A.F. 2025), involving hidden and destroyed evidence. Much like this lost evidence, no one is safe this Halloween! In discussing both cases, they mention a pending case at the CAAF, United States v. Braum, No. 25-0046/AF, 2025 LX 464077 (C.A.A.F. Oct. 8, 2025), and a case from last term, United States v. Strong, 85 M.J. 58 (C.A.A.F. 2024). Questions, comments, concerns for the nerds? Email us at [email protected]!

Send us Fan MailIn their debut episode as hosts, Sam and Trevor discuss the recent CAAF decision,United States v. Casillas, __ M.J. __, 2025 CAAF LEXIS 692 (C.A.A.F. 2025). Casillas clarifies (or confuses?) the holding in United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024), that cases charging a “without consent” theory of liability under Article 120, UCMJ, cannot be proven where the complaining witness is incapable of consenting, i.e., asleep or unconscious. Sam and Trevor also discuss a recent Navy CCA decision, United States v. Grafton, No. 202400055, 2025 LX 342911 (N-M. Ct. Crim. App. Aug. 11, 2025), that highlights some of the post-Mendoza influences (or problems?) in military justice practice. Before concluding, the duo briefly discuss instructional errors under Yates v. United States, 354 U.S. 298, (1957). Questions, comments, concerns for the nerds? Email us at [email protected]!

Send us Fan MailIn today's episode we say farewell to long-time host Darrel Johnson and officially welcome our new hosts, Sam Castanien and Trevor Ward!  In so doing, we discuss United States v. Saul & United States v. Navarro-Aguire, two cases that speak to the providence of a guilty plea and the importance of clarifying inconsistencies during the Care inquiry.  We then discuss United States v. George, an important case that makes new law on how the appellate courts will evaluate defective/ambiguous specifications.  

Send us Fan MailIn this week's episode we discuss one CAAF case, one N-MCCA case, and the reversing the script on MRE 404(b).  The CAAF case is United States v. Patterson, where CAAF declines to second guess the AFCCA on factual sufficiency because it is statutorily restricted to reviewing questions of law.  The N-MCCA case has several issues, including the permissive inference in a no-BCD SPCM, the Confrontation Clause, and the Constitutionality of a mandatory no-BCD SPCM in a drug case.  We then hear from Raquel Muscioni on utilizing M.R.E. 404(b) to prove up motive, competence, or other non-character matters pertaining to government witnesses.  

Send us Fan MailIn today's episode we discuss two cases from the Court of Appeals for the Armed Forces:  United States v. Johnson, which cements the conclusion that military appellate courts will not correct an erroneous indorsement to the Statement of Trial Results or Entry of Judgment requiring firearm prohibitions; and United States v. Thomas, which discusses the burdens on the defense and government under Batson v. Kentucky . . . even though it is not at all clear that that case applies to the facts of this case.  We then hear from Allen Abrams on the "permissive inference" and when and how to object to it.  

Send us Fan MailIn this week's (lengthy) episode we discuss United States v. Taylor, which deals with the statutory requirements that must be satisfied when involuntarily recalling a reserve member to active duty for purposes of court-martial (and how they differ from the statutory requirements that must be satisfied to subject the reservist to UCMJ jurisdiction).  We then discuss United States v. Harborth, where the issue was whether the government must have probable cause before accepting property seized by a private party . . . but the court avoids answering that question by finding 1) Harborth waived consideration of the length of time the property was held without probable cause, 2) a search or seizure by a private actor, not acting at the behest of the government, does not implicate the Fourth Amendment, and 3) the waiver was not IAC because, even if the search was unconstitutional, the military judge would have nevertheless exercised his discretion to find that suppression of the evidence was not warranted.  Not great.

Send us Fan MailThis week we discuss United States v. Brinkman-Coronel, where the CAAF acknowledges that cellular phones are unique under the Supreme Court's Fourth Amendment analysis, but then presses on to treat third party consent to the search of a cell phone in the same manner as third party consent to search a brief case.  Disappointing.  We then hear from Captain Elliot Ko with a very thoughtful discussion of MRE 513 in regard to Family Advocacy records -- including seven specific suggestions for defenders.  

Send us Fan MailIn this week's episode we discuss the AFCCA case of United States v. Hunt, where the AFCCA applies the new factual sufficiency analysis and concludes that the government failed to prove guilt beyond a reasonable doubt -- a huge defense win.  We then hear from Allen Abrams on Military Rule of Evidence 105 -- Allen does an excellent job of conveying the importance of the rule and how defenders can harness its power to ensure evidence is used in the manner most beneficial to the client.  

Send us Fan MailToday Lt Col Allen Abrams joins to discuss the case of United States v. Shafran.  The issue in the case is an Article 134 specification that failed to include words of criminality, such as "wrongfully" or "unlawfully."  The case provides an excellent vehicle for Allen to provide defenders with considerations and options for attacking defective specifications.  We then hear from the Free Speech Dynamic Duo - Trevor Ward and Sam Castanien who apply the current state of Free Speech law in military justice to the enumerated Article 134 offense of Sexual Harassment.  

Send us Fan MailIn this episode we discuss United States v. Caswell, where the Air Force Court of Criminal Appeals declined to follow the bench book and CAAF precedent, because it found that by moving the offense of unlawful possession of a concealed dangerous weapon from Article 134 to Article 114, the nature of the offense changed to put more onus on the unlawfulness element.  Therefore, it declined to apply the "permissive inference" that previously allowed the factfinder to infer unlawfulness based solely on evidence the weapon was concealed.  We then shift gears and talk about an upcoming CAAF case (United States v. Miller) on the issue of whether the automatic closure of an MRE 412 hearing is unconstitutional.

Send us Fan MailIn this episode we discuss the case of United States v. Urieta, where CAAF found an abuse of discretion in a military judge's failure to grant a defense challenge for implied balance in light of the liberal grant mandate.  We also discuss United States v. Valentin-Andino, which makes clear that "appropriate relief" may not feel like any relief at all to the client.  We also get to hear from Major Rebecca Saathoff on  strategic considerations when objecting (or hoping opposing counsel fails to object) to a proper confrontation of a witness with a prior inconsistent statement.  

Send us Fan MailThis week we discuss the CAAF case of United States v. Greene-Watson, which is another case addressing Military Rule of Evidence 404(b) and the very thin line between common scheme or plan and propensity under CAAF's recent case law.  We also here from contributor Captain Jeffrey Critchlow on the history, evolution, and current state of the law regarding the spousal communication privilege.  

Send us Fan MailIn this episode Sam Castanien and Trevor Ward return with a great discussion on Free Speech law in military justice - particularly in regard to the possession of obscene cartoon, anime, or computer generated images that the government attempts to charge as child pornography.  Making her Litigator Libations debut, is Rebecca Saathoff providing important information on how courts-martial and appellate review can impact your client's online presence.  Two great discussions from the good folks at Appellate Defense!

Send us Fan MailToday we discuss the CAAF case of United States v. Campos, decided on February 19, 2025.  It is an important case for defense counsel because the court provides important distinctions between what might be admissible as aggravation evidence in the prosecution's sentencing case, but is improper in an unsworn victim impact statement.  We then hear from Major Ciara Ryan who discusses how to object when the government notices M.R.E. 404(b) evidence, but the evidence they seek to admit for a relevant non-propensity purpose is already coming in to prove a separate charged offense.  

Send us Fan MailThis week we discuss United States v. Davis, where the majority at CAAF held that where a military judge removes himself from a case to avoid granting a defense motion, and then details a different judge to the same case in hopes of the motion being denied, was not structural error and, although wrong, did not prejudice the appellant.  We then hear from Captain John Fredericks on a recent trend of represented victims refusing to appear at MRE 412 or MRE 513 motion hearings and he provides advise on how to ensure those witnesses appear and provide testimony necessary to resolve the motion.  

Send us Fan MailIn this episode we discuss the CAAF case of United States v. Shelby, which was an Article 62 appeal of the military judge dismissing an abusive sexual contact charge with prejudice.  The CAAF held that the military judge abused his discretion by applying the cumulative error doctrine at the trial level.  We then pass on a hot take from Captain Riley Vann, who educated me on the Boyfriend Loophole to firearm prohibitions upon conviction of a misdemeanor crime of domestic violence.  Finally, we once again here from Lt Col Mouakar who provides an excellent discussion on the importance of early investigation into mitigation evidence, how to conduct that investigation, and how to use the information gained.  

Send us Fan MailIn today's episode we discuss the Air Force Court of Criminal Appeals case of United States v. Rocha, which considers the constitutional protections, as set out in Lawrence v. Texas, to private, secret, solitary masturbation with a child-sized sex doll.  Spoiler alert:  The Constitution Wins!  We then provide some comments on changes to the Manual for Courts-Martial as a result of the 2025 National Defense Authorization Act and Executive Order 14,130.  

Send us Fan MailIn today's episode we discuss the recent Air Force Court of Criminal Appeals case of United States v. Doroteo, where the court discussed three important issues for defensive litigation:  1) liberal discovery rules applicable to military justice, 2) the awesome power of R.C.M. 914, and 3) the excited utterance exception to the prohibition against hearsay.  The advocacy piece this week is just some thoughts on how to get sex offender registration under SORNA into the defense mitigation case in sentencing (rather than just in the unsworn) so as to avoid the Talkington instruction that essentially tells the members to disregard sex offender registration as a collateral consequence.  

Send us Fan MailHappy Holidays!  Today's episode discusses the recent CAAF case of United States v. Wells, where Airman Wells asserted that Clause 2 of Article 134 (acts made criminal where they act is of a nature to bring discredit upon the armed serves) is unconstitutionally void for vagueness.  The CAAF found the Clause constitutional and re-iterated that the government is not required to prove that anyone knew of the conduct or that it actually impacted any person's opinion of the armed services.  Because the CAAF relies on Parker v. Levy for the constitutionality of Article 134, I take a detour to discuss that case in hopes of putting it in context.  We then hear from Major Nicole Moukar from the Appellate Defense Division with some important considerations and strategies when working with child witnesses.

Send us Fan MailToday we discuss a NMCCA case that dismisses an illegal drug use charge under Article 112a, UCMJ, for being factually insufficient.  The case provides a great vehicle for discussing the permissive inference instruction and how defenders should push back against its use when there is no actual evidence that would make the inference reasonable.  We then hear from Captain Brusik on the Novel Offenses Doctrine, which is closely related to the pre-emption doctrine for Article 134 offenses.  He does a great job of breaking it down and highlights defense challenges to charging allegations of sexual harassment under Article 92, when there is now an enumerated Article 134 offense for that offense.  

Send us Fan MailThis week we discuss the case of United States v. Guihama, where the Court of Appeals for the Armed Forces revisits the issue of the quantum of evidence required to corroborate a confession before the confession can be admitted in evidence (spoiler alert - not much).  We then hear from Lt Col Tony Ghiotto who returns with weaponizing the rules of evidence and narrows in on character evidence.  

Send us Fan Mail[Revised]  In this week's episode we discuss United States v. Flanner; an opinion from the Court of Appeals for the Armed Forces that walks back CAAF's earlier proclamation that the right to counsel attaches earlier in military justice than it does under the Fifth Amendment.  We then hear from Major Ciara Ryan on how to effectively communicate with and prepare your client while still maintaining professional distancing so as to preserve your own well being.  

Send us Fan MailThis week we hear from Sam Castinien and Trevor Ward on major developments in Free Speech law in the military.  The issue is raised in United States v. Smith, which was decided by CAAF on September 13, 2024.  We then hear from first-time contributor Nicole Herbers, who discusses the sticky wicket of objecting to the government's argument in a judge alone forum.  

Send us Fan MailToday we discuss the recent and significant case of United States v. Mendoza, where CAAF holds that evidence that a named victim lacked the capacity to consent due to impairment by drugs or alcohol, will not support a conviction for sexual assault without consent under Article 120(b)(2)(A).  This case will have a big impact on how sexual assault cases are charged and litigated going forward.  We also hear from Major Ciara Ryan on member instructions -- she provides great thoughts on being creative to ensure your client gets the instructions most favorable to the defense.  

Send us Fan MailIn 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 131e, UCMJ.  We then hear from Captain Fredericks on Article 37, UCMJ, Unlawful Influence.

Send us Fan MailIn 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 whether the records are privileged under MRE 513.  We also hear from Lt Col Ghiotto who discusses the rule against hearsay and a couple of exceptions that defenders may want to consider.

Send us Fan MailIn 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 military mission or the military environment (element 4).  So it dropped that element and re-packaged it as an offense under the general article, Article 134.  The CAAF applies the preemption doctrine but also takes a stroll through the First Amendment -- and both have consequences for defense counsel.  

Send us Fan MailIn 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 the accused held a specific intent).  It is an excellent discussion that includes how the law has developed over the years and why.  We also hear, once again, from Major Ciara Ryan, fresh off her successful defense of a client charged with murder.  She tells us how she and her defense team utilized RCM 913(c) to orchestrate a field trip for the entire court to visit the alleged crime scene.  A great episode from two outstanding contributors!

Send us Fan MailIt 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 challenges for cause at voir dire.  It preserves the liberal grant mandate and provides helpful guidance to defenders.  United States v. Metz holds that law enforcement agents did not believe, nor should they have reasonably believed, that Corporal Metz was a suspect in need of rights advisement despite going to his barracks to interview him after discovering a fire they believed was arson, learning that it was likely started with someone who had a key to the building, Metz had a key to the building, Metz was disgruntled and two items in the building that were specifically targeted by fire belonged to his supervisor, and his supervisor told the investigators that if anyone started the fire, it was Corporal Metz...not a suspect!  The case also holds that Corporal Metz's consent to search his room was not the fruit of his illegal apprehension occasioned immediately prior to the consent.  We then turn to SCOTUS where Smith holds that a testifying expert who parrots the facts and conclusions proffered by a non-testifying expert as the basis for his opinion, amounts to hearsay and if the statements are testimonial they also violate the Confrontation Clause.  In Rahimi, the Court upholds a federal law prohibiting the possession of firearms by a person subject to a domestic violence protective order as consistent with the history and tradition of firearm regulation in the United States.

Send us Fan MailIn 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 more serious crime that the military judge described.  We also discuss a second case that also busts a guilty plea.  In United States v. Moore, the NMCCA set aside findings and sentence based on evidence the government put on in sentencing that cast significant doubt as to the providence of Sergeant Moore's plea of guilty.  Finally, we hear from Lt Col Allen Abrams who discusses the impacts (or lack thereof) of Article 58a, UCMJ, which allows for automatic reduction to E-1 upon imposition of a sentence that includes confinement, hard labor without confinement, or a punitive discharge.  As a matter of policy, the Air Force has never opted in to Article 58a but recent changes to the wording of the statute has muddied the water a bit.  Allen provides some arguments for defense counsel wrestling with the issue.  

Send us Fan MailIn 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 the admission of inappropriate propensity evidence.  We also hear from Major Ciara Ryan who discusses immunity and what to do when a witness invokes their rights against self-incrimination while on the stand.  

Send us Fan MailIn 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 that masturbating with a sex doll with childlike characteristics was a crime.  CAAF says it did.  We then hear from Lt Col Allen Abrams who provides a six step analysis on how defenders can analyze and attack the specification drafted by the government.  

Send us Fan MailIn 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 lack of mental responsibility and mental capacity.  We also discuss an AFCCA case (U.S. v. Csiti), which demonstrates the further degradation of appellate rights under the changes to Article 66, which now limits the scope of the CCA's factual sufficiency review.  Finally, we hear from Major Frederick Johnson on things you need to know when representing clients who may remain on active duty pending the appellate resolution of their case.

Send us Fan MailThe 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 it clear that a victim does not have standing to challenge how, or whether, her alleged assailant is prosecuted.  We also hear from Major Crouch with thoughts on starting strong in your sentencing arguments.

Send us Fan MailIn 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 testimony of the complaining witness.  The case gives us an opportunity to discuss both IAC and R.C.M. 914.  We also hear from Major Ciara Ryan on the issue of hearsay and, more specifically, evidence that is allowed as non-hearsay (e.g., effect on listener) and ensuring that evidence doesn't find its way into trial counsel's arguments.