Friday, January 12, 2007

CAAF to hold second argument in case involving comments on invocation of constitutional rights

On 15 November, CAAF heard oral argument in United States v. Moran, No. 06-0207/AF. The granted issue in Moran was "whether Appellant's substantial rights were materially prejudiced when prosecution witnesses and trial counsel commented on Appellant's request for an attorney and Appellant's refusal to give consent for a search and seizure of his hair and blood." United States v. Moran, 64 M.J. 80 (C.A.A.F. 2006) (order) (capitalization changed to make it readable). CAAF apparently enjoyed the argument so much that the judges are inviting counsel back to do it a second time. Of course, this time there will be two new faces at the party.

In an order dated Wednesday and posted on the CAAF web site today (like most of us, CAAF seems to be slipping a bit on its New Year's resolution), CAAF announced that "additional briefing and oral argument are necessary." Much like Linda Richman offering a topic for discussion while she's verklempt [score: CAAFlog Linda Richman metaphors -- 3; CAAFlog figure skating metaphors -- 1], CAAF ordered the parties to address two additional issues:

I. The Uniform Code of Military Justice is neither uniform nor in code. Discuss.

II. The Judge Advocate General of the Navy is neither a judge nor a general. Discuss.

No, I'm making that up. Here are the two new issues:

Whether evidence reflecting the accused's exercise of constitutional rights was admissible as part of the background sequence or chronology of events leading to the seizure or discovery of otherwise admissible evidence.

If evidence of the accused's exercise of his constitutional rights was admissible for purposes of establishing background sequence or chronology without objection, was it plain error if no instruction was given advising members that the evidence could not be considered as evidence of guilt or criminal conduct[?]

United States v. Moran, __ M.J. ___, No. 06-0207/AF (C.A.A.F. Jan. 10, 2007) (order) (capitalization again changed to make it readable).

The original issue and the two new issues will all be argued together, probably later this term to fill out CAAF's rather thin docket.

--Dwight Sullivan

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