Sodomy With a Child -- Mistake

The Court of Appeals for the Armed Forces has decided United States v. Wilson, __ M.J. ___, No. 06-0870/AR (C.A.A.F. Feb. 25, 2008).

A 3 - 2 majority of the court holds that there is no honest and reasonable mistake of fact defense as to age, in a prosecution for sodomy with a child under 16.

As our colleague at CAAFLog notes, Wilson is a case that's unlikely to draw attention at the U.S. Supreme Court -- it's a guilty plea case. We also agree that the majority is wrong -- if the statute or regulation is ambiguous, the rule of lenity ought to be used.

While CAAF has decided the issue, it is still ethical to raise the issue in a contested case. Cite the arguments of the Wilson dissenters and CAAFLog as jusfication; along with the point that while CAAF appears to have decided the issue, the SCOTUS hasn't.

Crawford Issues

Crawford v. Washington, 541 U.S. 36 (2004) indicated and Davis v. Washington confirmed "that one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." 165 L.Ed.2d. 224, 244 (2006). But does the prosecution have to prove the specific intent was to prevent the person testifying? That is the issue in New Mexico v. Romero, 07-37. The cert. petition is here, courtesy of AAG Joel Jacobsen. As a practical matter, such proof could be extremely difficult. Motives of preventing testimony, retaliation for going the police, and whatever the motive was for the original act of violence could all be mixed. When the killer has multiple motives, how do you prove specific intent?

Another Crawford case to watch is Cage v. California, 07-5156. The California Supreme held that the son's statement to the emergency room doctor in response to the question "What happened?" was not testimonial. A statement to the investigating police officer was testimonial, but it was harmless due to being cumulative to the other statement. The cert. petition in Cage is here, courtesy of Gary Schons.

This item "stolen" from the Crime & Consequences Blog.

False or Coerced Confessions

Psychology & Crime News. This particular item talks about coerced confessions.

There is new research available on the false/coerced confession issue. Klaver, J.R., Lee, Z., Rose, V.G., Effects of personality, interrogation techniques and plausibility in an experimental false confession paradigm. Legal and Criminological Psychology, 13(1), 71-88 (2008).

There is an excellent article in the Military Law Review dealing with the issue of interrogation methods, and a need to educate members panels through expert testimony about psychological interrogation methods.
MAJ Peter Kageleiry, Jr, Psychological Police Interrogation Methods: Pseudoscience in the Interrogation Room Obscures Justice in the Courtroom, 193 MIL. L. REV. 1 (Fall 2007).

See also my earlier post about the imbalance on when the defense gets expert assistance compared to the prosecution. How many prosecutors comply with R.C.M. 703(d); the defense has to, so does the prosecution; yet they don't. See, Risinger, Michael D., Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock? 64 Albany L. Rev. 99 (2000).

Custodial Interrogation

In United States v. Colonna, 06-5237 (4th Cir., Dec. 20, 2007), the FBI agents told the accused he was not under arrest. The FBI agents did not give Miranda warnings. The appellate court reinforced looking to the totality of the circumstances.

Indeed, there is no precedent for the contention that a law enforcement
officer simply stating to a suspect that he is "not under arrest"
is sufficient to end the inquiry into whether the suspect was "in custody"
during an interrogation. See Davis v. Allsbrook, 778 F.2d 168,
171-72 (4th Cir. 1985) ("Though informing a suspect that he is not
under arrest is one factor frequently considered to show lack of custody,
it is not a talismanic factor"). Rather, we have held that the "ultimate
inquiry" looks to the totality of the circumstances to determine
whether they indicate an individual’s freedom of action is curtailed to
a degree associated with formal arrest.