Friday, July 04, 2008

Whither Wheeler?

We previously noted that CAAF enlarged the Judge Advocate General of the Navy's deadline for filing a certificate of review to challenge United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008), until 1 July. United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008). (We previously discussed NMCCA's opinion in Wheeler, which held Military Rule of Evidence 707 unconstitutional as applied, here.)

CAAF's daily journal for 1 July is online; it doesn't note the filing of a certificate in Wheeler. Does that indicate that the Judge Advocate General of the Navy declined to certify Wheeler? Can someone with definitive knowledge let us know? (As always, if you don't want to post below, you can e-mail us at


Phil Cave said...

I like the result in Wheeler, let's hope either it doesn't get certified, or CAAF agrees with NMCCA.

I've often argued that submitting to a polygraph (without addressing the result) is admissible as a fact helping to support a "consciousness of innocence" argument (and a usually denied consciousness of innocence instruction similar to the consciousness of guilt instruction the prosecution gets).

What may be inadmissible for one purpose can still be admissible for a different purpose. That comes up in evidence fairly frequently. If nothing else, the principle is regulated in MIL. R. EVID. 703. So it would seem to me there ought to be an alternate basis for admission of the fact of taking -- three or four -- polygraphs, without reaching the constitutional issue. I realize of course the language in MIL. R. EVID. 707(a), precludes my analysis. But what about 707(b). The statements made during a polygraph are admissible. So how does an accused challenge the accuracy or method of extracting statements used under 707(b) consistent with 707(a).

Anonymous said...

The government asked for another 15day continuance to decide if they want to certify.

Anonymous said...

The government should stop asking for enlargements and just file whenever TJAG wants to. CAAF's rules can't preclude the JAG from certifying an issue, Congress gave TJAGs that right so 15 days here and there is like asking permission to do something you already have the right to do.