Part I, Preamble
Part II, Rules for Courts-Martial
Part III, Military Rules of Evidence
Part IV, Punitive Articles
Part V, Nonjudicial Punishment
Changes to Jury Selection in 2019
Here are the major changes to military practice for 2019. This is a very simplified guide to give potential accused members a general idea of the changes coming for 2019.
In 2019, court-martials will have a fixed composition. A General Court-Martial will have 8 members. It could be reduced to 6 or 7 after challenges or excusals. In capital cases, the jury will have 12 members.
In a Special Court-Martial, the jury will consist of 4 members. There is a new type of Special Court-Martial that is military judge alone.
How Does Voting Work
Under the new system, a conviction will require a 3/4thvote (75%). A General Court-Martial with 8 members will require 6 votes to convict – 3 votes to acquit. A Special Court-Martial with members will require 3 votes to convict – 2 votes to acquit.
How Will Military Judge Alone Special Court-Martials Work
Under the new system, a military judge alone special court-martial will have certain sentence limitations. The judge will not be able to impose a punitive discharge, confinement for more than 6 months, or forfeitures of pay for more than 6 months.
Enlisted Members from the Same Unit as the Accused
Article 25, UCMJ was updated. Previously, enlisted members from the same unit as the accused were prohibited from serving on a jury. Now, any enlisted member is eligible to serve – including from the same unit.
The new Rule for Courts-Martial 502 (a)(2)(B) and 912 allows the Convening Authority to detail alternate members to a court-martial. They are present and hear evidence, but do not participate in deliberations.
Are there new Sentencing Rules
Under the new system, a military judge will conduct all sentencing. In a members case, the accused can elect sentencing by members.
With members sentencing, the jury will adjudge a single sentence for all offenses. With military judge sentencing, the judge will determine appropriate terms of confinement and/or fines for each specification. The judge then determines whether the sentences are concurrent or consecutive. Terms of confinement for two or more specifications will run concurrently when they involve the same victim.
Among the matters you should consider are: [appropriate selections may be made from the following list]
In Part I of this blog series, I posted some data from the Department of Justice on false allegations. In Part II, I'll discuss the literature on detecting lies. In Part III, we talk about nonverbal deception and facial expressions. In Part IV, I'll talk about false confessions.
I've spent the better part of the past decade studying deception. It is a critical area of study for the lawyer who makes their living cross-examining witnesses. There is extensive literature on both verbal and non-verbal deception. For a service member accused of crimes, you want a lawyer skillful at detecting deception.
One of the most influential books for me is "Detecting Lies and Deceit - the Psychology of Lying and the Implications for Professional Practice" by Aldert Vrij. The lessons from that book have served me well as a trial lawyer. Here are some of my take aways from that book.
In terms of detecting deception, you need to understand a couple of key principles:
1: Human beings are poor at detecting deception. This is a key point, because military members on juries tend to believe that they are good at detecting deception. They have a high level of confidence in their ability to detect deceit. They can be prone to making quick judgements.
The truth and data shows they are not good at detecting deceit. For that reason, we have to be very skillful at explaining deception and motives to lie. Studies of police officers shows that they detect lies about 57% of the time. Even professionals are poor at detecting deceit.
2: Human beings are good at lying. And they lie frequently. It is estimated that people lie once in every 10 social interactions. Those lies are detected about 18% of the time.
3: Lying is an intentional act.
4: There are three ways to detect a lie. (A) Observing verbal behavior (B) Analyzing speech content and (C) Measuring physiological responses (blood pressure, heart rate, etc).
5: People lie for several broad reasons:
A: To protect themselves from embarrassment or disapproval;
B: To gain an advantage;
C: To avoid punishment (This is an important one for cases involving children. They tend to tell lies to avoid punishment);
D: For another person's benefit; and,
E: For the sake of social relationships.
6: When cross-examining and interviewing witnesses, we're looking for outright lies, exaggerations, and subtle lies. We want to be able to point out these distinctions to panel members.
7: A lie is easier to tell when the speaker has an opportunity to prepare the lie. This is another key lesson for court-martial practice. We want to illustrate to the jury - every opportunity that we get - that the government's witnesses had an opportunity to prepare their lie.
8: We want to observe the liar's personality traits as best we can. Some liars have manipulative personality traits. They do not lie if they are likely to get caught. They can be dominating in their conversation patterns. They may seem relaxed and confident. Some people are sociable or good actors. They are talented at regulating their physical appearance when lying. Other people are adapters. They have a way of trying to make a positive impression on others.
9: We want to pay careful attention to nonverbal behaviors and micro-expressions. This is difficult to do in a trial setting. However, it is immensely valuable when we can point witness micro-expressions out to the jury. There are automatic links between emotions and lying. People sometimes contort their faces in particular ways that we will discuss in Part IV.
10: We want to be aware of the mental processes that the liar is experiencing during the deception. They may be feeling guilt, fear, or excitement.
11: When the lie is complex or the liar is taken by surprise, there may be slower or faster rate of speech, speech errors, changes in pitch, sentence repetition, delays in answering, and gaze aversion to avoid distraction. They may also be very self-conscious about their behaviors and over-regulate their posture and nonverbal presentation. We're looking for shifting movements.
12: Liars in the military are not always taken by surprise. The lie is prepared. In those cases, we may be looking for a faster speech pattern and fewer speech errors.
13: In a court-martial setting, one of the best approaches - in my opinion - is in analyzing the content of the speech. This is a skill that I have really practiced over time. Here are some of the aspects of speech that I am paying close attention to:
A. Negative speech indicating aversion towards people. Things like disparaging statements;
B. Plausible answers. The truth usually makes sense.
C. Irrelevant content. We pay careful attention to people who provide irrelevant information.
D. Overgeneralized statements. Words like always and never. Military members have a tendency to abuse generalized statements.
F. Unusually direct answers.
G. Response length.
These are not all indicators of deception. These are simply aspects of speech that we are paying careful attention to.
14: The details of the offense are critical to analyze. If the details of the offense seem implausible, we want to understand why. People who lie often do not have enough information available to present a coherent story. Sometimes they want to avoid details so they do not later forget them. Often a chronological account is easier to tell than an unstructured account.
15: When I read a victim or client statement from law enforcement, I have a validity checklist:
-Inappropriate language or knowledge
-Susceptibility to suggestion - discussed more in our upcoming blog on false confessions
-Overall thoroughness of the interview
-Motives to lie
-Context of the original report
-Pressure to report
-Inconsistencies with other witnesses and evidence
Often, it is helpful to analyze other aspects of speech. An older book titled "Mannerisms of Speech and Gestures in Everyday Life" by Dr. Sandor Feldman takes a more Freudian approach to analyzing speech. Some of this analysis is helpful to the trial lawyer. Dr. Feldman analyzed common expressions.
For instance, when a person says "by the way", Dr. Feldman theorizes that the speaker is attempting to make the information appear unimportant. Or they are trying to appear as though the remembered the information incidentally.
"Needless to say" can signify ambivalence. A sentence that begins with "honestly" suggests the person is not always honest.
There is rarely a good reason for a person to say "I don't care." It's a common answer when a victim is asked about their opinion on the outcome of a case.
The phrase "of course" can be a clue to possible deception. Imagine a woman who asks her husband if he still loves her. He says, "of course." A simple yes would be more appropriate. The "of course" tells the truth in a veiled way. He loves her, but not like before. When a court-martial witness uses the phrase "of course", I usually want to delve deeper into why they said that.
Words like "only" and "just" can sometimes mask guilt or responsibility.
Those are just a few examples.
The bottom line is that it takes years of experience interviewing hundreds - maybe thousands - of people to become skilled at cross-examination. It requires us to be present in the moment, to know the evidence better than the witness, and to have good judgement in knowing what to ask and what not to ask.
In the next section, we'll discuss non-verbal cues and micro-expressions.
I was recently at Fort Carson, Colorado. I came across a flyer from the Department of Justice titled "False Allegations of Adult Crimes Reference Guide." The flyer has prompted me to write about false allegations and deception. This Part I will provide the data from the Department of Justice. The data apparently came from the FBI Behavioral Analysis Unit and National Center for the Analysis of Violent Crime.
The primary motivations and indicators section below provides a great resource for closing arguments in military court-martials.
The Department of Justice flyer on false allegations provided the following data on false allegations:
-Most likely white (93%)
-Majority are female (73%) male (27%)
-Average age was 30 and the most frequent age was 41
-At the time of the offense, 27% had documented mental illness (depression most common), all female
-At least 43% had a HS education/GED
Marital status by gender:
-Females, married (18%), never married (50%)
-Males, married (89%), never married 30% first marriage, 10% co-habitating/significant relationship
-Full-time employment (60%), part-time (3.3%), student (3%), unemployed (17%)
-No known substance abuse (63%), alcohol only (10%)
-Most common life problem prior to false allegation:
-Marital problems/conflict 63%
-Financial problems 33%
-Mental health issues 23%
-Unemployment/recent loss of job 13%
-27% have made at least one prior false allegation; rape/sexual assault (10%), stalking (10%), physical assault (7%), threats (7%)
-23% have been arrested at least once including charges such as theft/larceny, drugs/narcotics, trespassing, assault/battery
-In 73% of cases, the offender brought the case to the attention of law enforcement: sexual assault (73%), abduction (27%), threats (20%), stalking (17%), attempted murder (10%), extortion (7%), physical assault (7%), hate crime (3%), other (13%).
-Over half (53%) of the cases involved two types of offenses.
-In 73% of cases, there are indications of pre-planning/preparation
-Half of the offenses involved more than one location
-Evidence of physical trauma is reflected in 30% of the cases to include blunt force trauma, edged weapon, ligature strangulation, gunshot wound, burn (fire or chemical)
-Sexual trauma is rare; however, when observed there is trauma to the vaginal cavity, foreign object insertion or breast/nipple lacerations
-Evidence of staging in more than half the cases (60%) to include ransacking, vandalism, threat letters, burglary, use of explosive device, and car jacking
Primary Motivation for the Offenses
-Interpersonal violent allegations (e.g. sexual assault) were primarily motivated by attention/sympathy (50%), whereas interpersonal offenses (e.g. arson, theft) involved other motivations such as providing an alibi (17%), mental illness/depression (13%), profit (13%), and revenge (7%)
-Conduct 2 prong investigation
-Continue logical investigation to determine if there is, in fact, a legitimate offender
-Conduct discrete, parallel investigation to determine/identify the life problems of the false allegation offender
-The interview strategy is depending on the motivation of the offender. An investigator would approach an offender motivated by internal need for attention/sympathy far differently than one motivated by financial gain or revenue
-Emphasize the life problems of the offender
Possible Indicators of False Allegations
-Inconsistent statements by the offender
-Deception on polygraph
-Witness statements that conflict with the offender
-Lack of plausibility in the deception of the reported offense
-Lack of substantiating forensic, physical, and/or medical evidence"
Mr. Conway following a full acquittal at Fort Carson.
It's that time of year where we can look back and evaluate our results in trial for the year. On our results page, we've posted short summaries of all of the courts-martial that Mr. Conway appeared in.
We may be the only firm that provides end of year litigation statistics. We do so with the standard caveat. Every case is unique and different. We do not guarantee outcomes. These are simply metrics to help us evaluate our own skills and help you select counsel.
As we look at our results for the year, some cases are ongoing, so we'll only include cases where charges were - in fact - preferred and completely resolved in 2016. We had several cases where we avoided charges altogether. Those are not included. Generally, we want to evaluate cases where Mr. Conway appeared before a fact finder and called witnesses.
Mr. Conway appeared on record in 22 courts-martial that had charges preferred and went to completion in 2016. Of those 22 cases, 16 (72%) went to a full trial. The remaining 28% were dismissed after or just before pretrial hearings for a variety of reasons (e.g. no evidence, reduced to reprimand, reduced to separation board, resignation, separation in lieu of trial).
In a statistic we're extremely proud of, 9 out of 14 trials (64%) were fully contested and resulted in a full acquittal. That's nearly two out of three contested cases. Four cases (28%) were mixed verdicts. Of the mixed verdicts, only one case resulted in confinement and/or a discharge.
One case was a full conviction for cocaine use (no confinement or discharge).
Only 2 cases (9%) involved a guilty plea. Mr. Conway has a strong bias against taking deals. Only 3 cases (13%) received confinement (3 months, 241 days, 30 days - two of those cases were guilty pleas).
Here is a breakdown of the cases we tracked to completion to get these results:
7 Jan: Navy officer drug case out of Virginia. Not guilty.
14 Jan: Coast Guard maltreatment case out of Virginia. Mixed verdict. The Sailor was retained.
16 Jan: Louisiana National Guard officer case involving conduct unbecoming, false official statement, and travel fraud. We were prepared for trial, but the officer's civilian employment made a resignation highly desirable. We were able to negotiate a resignation with a general discharge.
20 Jan: An Army officer overseas was accused of sexual assault. The divorce was toxic enough that we were able to avoid a court-martial. The command did give the officer a reprimand.
29 Jan: An Army Soldier in South Korea was accused of sexual assault. Mr. Conway appeared in the Article 32 Investigation. The alleged victim actually testified. Mr. Conway obtained a recommendation of no probable cause. The Soldier accepted a chapter for personal reasons and flowing from some fraternization allegations.
10 Feb: An Air Force Technical Sergeant at Moody was accused of sexual assault by his ex-wife. She testified at the Article 32 Investigation. We got the charges dismissed after the Article 32.
2 Mar: An Army officer in DC was accused of assaulting his wife. It was an aggravated assault charge. There wee photos of the injuries and she ran across the street to immediately report the injuries. The officer was found guilty of a lesser included offense. Mr. Conway got a conduct unbecoming charge dismissed. The officer was retained.
23 Mar: An Airman at Barksdale was accused of forcible rape. He was found not guilty.
6 Apr: An Air Force Staff Sergeant at Mountain Home faced 27 charges of sexual assault and assault by his ex-wife. We got 4 charges dismissed. He was found not guilty of the remaining 23.
21 Apr: At Davis-Monthan, a Senior Airman was facing a very challenging charge sheet brought by his ex-wife. There were sexual assault and assault charges. There were also highly incriminating text messages. We beat the sexual assault allegations. There was a mixed verdict to the assault charges. The Airman got 3 months confinement and a BCD.
24 May: An Army Sergeant First Class was accused of sexual assault by a staff sergeant in Germany. He was found not guilty.
8 Jun: A Sailor in New Jersey was caught on tape stealing from the post-exchange. Larceny charges were preferred. Mr. Conway negotiated a separation in lieu of trial.
16 Jun: An Army sergeant in Vincenza, was accused of disrespecting an officer and other allegations involving 3 females. We linked the 3 females together in a conspiracy. The sergeant was found not guilty of everything.
19 Jul: A Marine corporal at Miramar testified positive for a really high amount of cocaine. He was found guilty. He got no confinement and no discharge.
5 Aug: A Marine corporal was facing a court-martial for steroids. We got the charges dismissed and the Marine went to an administrative separation and got a recommended suspended general discharge.
15 Sep: An Army Master Sergeant at Fort Bragg was accused of raping his daughter - among other things. He was found not guilty of everything.
6 Oct: An Army sergeant at Fort Hood was accused of child abuse - among other things. He was found not guilty of everything.
13 Oct: A Marine male lance corporal was accused of abusive sexual contact of 3 male Marines in their sleep. We got a few charges dismissed. Ultimately, we negotiated a time served deal. The Marine also received a discharge.
2 Nov: An Army sergeant at Fort Benning was facing failure to report, falsifying PT scores, and a litany of other charges. He was found not guilty of everything.
10 Nov: Negotiated guilty plea for an officer who falsified documents to receive the bronze star and many other awards. 30 days confinement and a dismissal.
17 Nov: A major at Fort Belvoir was accused of abusive sexual contact by a staff sergeant. He also faced communicating a threat and fraternization charges. He was found not guilty of everything but the fraternization. He received a reprimand from the jury.
15 Dec: An Army captain at Fort Carson faced allegations of abusive sexual contact by a sergeant. He was found not guilty of everything.