Thursday, May 24, 2007

CAAF grants petition

Today's update of CAAF's daily journal includes a new grant, which might actually fill CAAF's dance card for its first day of oral argument next term.

The issue granted in United States v. Brown, __ M.J. ___, No. 07-0286/AR (C.A.A.F. May 23, 2007) (order) is, "Whether the military judge erred by instructing the court members that they could convict appellant of indecent assault, the lesser-included offense of rape, without voting on each of three separate factual scenarios, which effectively constituted duplicitious pleading."


John O'Connor said...

"Duplicitous pleading"? As in cunning, deceitful? Or do they mean "duplicative" pleading?

CAAFlog said...

R.C.M. 906(b)(5) uses the term "duplicitous" to refer to a specifiction that alleges two offenses: "(5) Severance of a duplicitous specification into two or more specifications." That rule's discussion adds: "Each specification may state only one offense. R.C.M. 307(c)(4). A duplicitous specification is one which alleges two or more separate offenses. Lesser included offenses (see Part IV, paragraph 2) are not separate, nor is a continuing offense involving several separate acts. The sole remedy for a duplicitous specification is severance of the specification into two or more specifications, each of which alleges a separate offense contained in the duplicitous specification. However, if the duplicitousness is combined with or results in other defects, such as misleading the accused, other remedies may be appropriate. See subsection (b)(3) of this rule. See also R.C.M. 907(B)(3)."

N said...

Duplicitousness - if you combine the JO'C devinition and the CAAFlog definition you have a spec that combines two or more unrelated acts in one that devrices you as to which one represents the true meaning of the spec. A bit like an ACLU attorney that is a Marine Colonel-just kidding. I think that is the misleading is the key to duplicitousness and the related issue of fatal variance.