U.S. v. Tanksley, 54 M.J. 169

Military Justice Personnel: Defense Function: Right to Counsel

1. seizure of document displayed on appellant’s computer screen did not infringe upon appellant’s right or ability to communicate with counsel, and there was no Sixth Amendment violation simply because otherwise privileged, confidential information was viewed

Core Criminal Law Subjects: Evidence: Balancing

1. a judge’s decision to admit evidence under Mil. R. Evid. 403 is reviewed for abuse of discretion; the military judge enjoys wide discretion when applying Mil. R. Evid. 403, and where he conducts and announces his balancing test on the record a reviewing court will exercise great restraint in reviewing his decision and give him maximum deference in determining whether there is a clear abuse of discretion

Core Criminal Law Subjects: Evidence: Intent

1. a pattern of lustful intent, established in one set of specifications, can be used by factfinders as proof of lustful intent in a different set of specifications
2. extrinsic evidence of one crime used to support intent to commit a different crime will possess great probative value if the defendant’s intent is in issue and may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct

Core Criminal Law Subjects: Evidence: Other Acts

1. Mil. R. Evid. 404(b) is a rule of inclusion; the nub of the matter is whether the evidence is offered for a purpose other than to show an accused’s predisposition to commit an offense
2. testimony from appellant’s older daughter that he had sexually molested her years earlier was admissible against appellant on charge of sexually molesting a different daughter where the evidence met the three-prongs for admissibility of Mil. R. Evid. 404(b) evidence: (1) the testimony of the older daughter reasonably supported a finding by the court members that appellant has sexually abused the older daughter; (2) the evidence made the existence of appellant’s malevolent intent in bathing with the second daughter more probable; and (3), as the evidence was properly before the members on another charge and because the trial judge’s instructions precluded any improper use of the evidence, there was no danger of unfair prejudice

Core Criminal Law Subjects: Evidence: Polygraph

1. portion of appellant’s pretrial statement referencing his refusal to take a polygraph examination should have been redacted prior to providing the statement to the finder of fact

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. seizure of a document displayed on appellant’s computer screen did not violate appellant’s right to be free from unreasonable searches and seizures; appellant had, at best, a reduced expectation of privacy in the government office he occupied; in addition, appellant forfeited any expectation of privacy he might have enjoyed by leaving the document in plain view on a computer screen in an unsecured room; finally, the document was exculpatory and not used at trial, did not reveal confidential information about defense strategy, and produced no information or leads not otherwise known to the government

Trial Stages: Pretrial: Pretrial Punishment

1. appellant’s tactical decision to take issue of conditions of pretrial confinement amounting to pretrial punishment to the members during sentencing rather than asking the military judge for appropriate relief was tantamount to a waiver of this issue

Trial Stages: Appeals: Preservation of Error / Plain Error

1. appellant’s failure to object to a reference in his pretrial statement to his refusal to take a polygraph examination forfeited any issue in the absence of plain error; appellant failed to sustain his burden of demonstrating prejudice where this passing reference to a polygraph examination did not materially prejudice any substantial right of appellant
2. an appellant has the burden of demonstrating that any plain error materially prejudiced his substantial rights
3. a judge’s decision to admit evidence under Mil. R. Evid. 403 is reviewed for abuse of discretion; the military judge enjoys wide discretion when applying Mil. R. Evid. 403, and where he conducts and announces his balancing test on the record a reviewing court will exercise great restraint in reviewing his decision and give him maximum deference in determining whether there is a clear abuse of discretion

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard

Trial Stages: Appeals: Waiver

1. appellant’s tactical decision to take issue of conditions of pretrial confinement amounting to pretrial punishment to the members during sentencing rather than asking the military judge for appropriate relief was tantamount to a waiver of this issue