Military Law
Updates and Practical advice from a civilian military defense counsel.
Cross Examination Prep for the Client
STAY IN THE BOX
Surprisingly, cross examination begins with our Direct Examination. What we are practicing on direct is “staying in the box.” The box is the elements of the crime that the prosecutor is trying to prove. “Intent.””Location.” “Illegal Act.” Whatever element of the crime is in dispute, that becomes part of the box. We Do Not Ever Answer Outside the Box.
WHAT HAS ALREADY BEEN SAID:
Credibility is how you win the cross-examination game. The problem is that the prosecution will have access to any statement you made previously. That can be any statement that we are unable to suppress. A statement you gave to your MOM. A statement to the police. You must answer truthfully. If we are disputing a previously made statement, we will have to be ready for what the Government Attorney knows to be true.
For example, if a client is on the stand and he has previously admitted to the authorities that he touched someone, but didn’t admit to an inappropriate or illegal touching, we are not going to say that “I intended to touch her inappropriately.” That is the baseline and line that we never cross. We won’t admit that we intended anything inappropriate in the touch.
LISTEN TO THE QUESTION:
The key to answering the question in the RIGHT way is to listen to the question. Say, unfortunately, you admitted to touching her, but it was an accident. You will have to admit that you touched her, but you must listen to the questions. The Prosecutor will ask you questions to make you react emotional and to start freely talking. You must review your statement to make sure your answers are in line with what you said previously?
“You touched her didn’t you?” -Yes
“You touched her her hand, didn’t you?- Yes
“She touched your shoulder?”- Yes
“You touched her after she touched you?” – Yes
“You asked her about her personal life, and going to a club, right?” – Yes
“You noticed she was wearing sexy clothes, right?” – NO (you may have notice she was wearing a type of clothes, but NOT SEXY) (Outside the box)
“You felt like because she was inappropriately dressed and meant you could touch her, didn’t you?” – NO
“You touched her her hand, didn’t you?- Yes
“She touched your shoulder?”- Yes
“You touched her after she touched you?” – Yes
“You asked her about her personal life, and going to a club, right?” – Yes
“You noticed she was wearing sexy clothes, right?” – NO (you may have notice she was wearing a type of clothes, but NOT SEXY) (Outside the box)
“You felt like because she was inappropriately dressed and meant you could touch her, didn’t you?” – NO
These are an example of the types of questions you might see. You will see that they are all in a “yes/no” format. It is best for you to answer truthfully, yes or no, to each of these questions. Explanation are not what we want. If we want to do that, we will do it when I come back to the stand. If I need to rehabilitate you, I will do that on redirect.
See the in the questions, there are a series of yes answers. They may also ask you a series of questions that sound the same. This is called looping. They want to get you into a rhythm of saying “yes” or “no” to a series of questions. After you are acclimated to the answer, they will try to throw in a opposite type of question. They will try to trip you up and make you seem confused.
NO EMOTIONS
You must remain calm when you are answering the prosecutor. YOU WILL NOT ARGUE WITH THE OTHER ATTORNEY FROM THE STAND. The judge and everyone else in the Court sees the prosecutor as an officer of the Court and someone that is respected. They see you as a potential criminal. You can never win in an emotional battle from the stand with the Officer of the Court. If you force the Judge to reprimand you from the stand, we are looking bad. You lose your credibility, which is the only reason we put you on the stand, when you get emotional and argue.
Video on How to Create the Discharge Upgrade Affidavit
Article 32 Transformation in the Military Sexual Assault Justice System
The system has changed. I first came into the military in 1985. As a single enlisted Soldier I had an overseas tour in Germany. The climate of the US Army was post-Vietnam era, filled with Vietnam Era problems. Drugs and Discipline were the main concerns.
Sexual Harassment and Sexual Assault has begun to have a significant impact on all four services. The interactions of men and women have created a fairly balanced military and has brought about positive changes in the mission of the military.
There has also been significant impact on the military justice system. The changes to the Preliminary Hearing system has destroyed one of the protections for a military member. Formerly Preliminary Hearings, with a neutral military officer presiding, gave a raw picture of what the evidence would produce at trial. This type of opinion gave both the prosecution and defense a good idea of how valid the evidence would be at trial.
Now, Congress has replaced the system of real preliminary hearings with a “rubber stamp” straight to trial. The preliminary hearing officer is JAG officer that is really their to review the investigative matter. This is a documentary hearing where the prosecution rarely calls witnesses and the defense has no reason to call a witness. They don’t want their case to be seen at this point. Although the need for a preliminary hearing remains, they either need to serve a function or should be abolished as a pro forma and archaic view of justice.
Department of the Army and Suitability and Evaluation Board (DASEB) Victory
My client and I have spent the better part of two years fighting a false GOMOR. The underlying facts were always in dispute. There were two Article 15-6 investigations. The IO’s of both investigation interpreted the evidence differently. We appealed to the DASEB and put together an excellent packet. The GOMOR was redacted as asked.
Suffering from a ‘Personality Disorder
This is a great article on a fight that one of my clients is in with the US Air Force over an erroneous discharge.
Army QMP board (quality management program)
The U.S. Army’s quality management program is governed by Army Regulation Active Duty Enlisted Administrative Separations (AR) 635-200, Chapter 19. This program has been at a fever pitch for the last several years. With the Trump Administration, this program may slow down. In the US Army, generally, any adverse action that is found within an enlisted Soldiers record can subject them to being separated under QMP.
Most Soldiers use Legal Assistance on their local Fort/Post to defend the action. Generally, the tactics and techniques used by Legal Assistance are outdated. Their advise will be to create a rebuttal letter the claims responsibility for the actions and lifts up the accomplishments of the Solder. This is a failed tactic. You must decide to fight.
Recently, I’ve had many Soldiers that have been targeted by this program. Our success rate has been extremely high. We approach the rebuttal process differently than most. We challenge the idea that you are not an asset to the US Army and we challenge the underlying allegations (to include DASEB appeals and ABCMR), The attacking approach works best and has the highest success rate.
Another Client in the News
Jameson Hazelbower
Recent Sensational Post Story
I represented Jameson Hazelbower at a Courts-Martial at Fort Campbell Kentucky. The Washington Post recently wrote a story on this case. The headline “Suspected rapist goes AWOL; no Army search.” was extremely sensational and inflammatory. The case is old. The conviction took place in May 2015 and Jameson was sent to Fort Leavenworth.
The implication that somehow the military did something wrong by using civilian law enforcement personnel is a bit ludicrous. You need to ask yourself do you want young military MPs searching the country for deserters or AWOL Soldiers? I personally do not.
I think we should let military personnel do what they do best and let law enforcement do what they do best.
Gotomeeting.com
For military law discussions, I am willing to talk about your case via www.gotomeeting.com These will be live chats where we can see each other and discuss any military issues you may have. Text me at 931-217-7648 so we can set up a time and I can send you a link.
Kandu Military Law 