107 - Res Gestae for Sexual Assault Cases & Post Trial Motions

This week, Sam and Trevor discuss a new Court of Appeals for the Armed Forces (CAAF) case, United States v. Washington, No. 25-0044, 2026 CAAF LEXIS 353 (C.A.A.F. Apr. 13, 2026), and then feature a trial-level practitioner, Raquel Musconi, to discuss post-trial motions. Before jumping into both, the pair cover a quick update to United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 189 (A.F. Ct. Crim. App. Apr. 17, 2026). The Air Force Court of Criminal Appeals issued a new opinion, but not much changed. Check out Episode 100 for a refresher!

Sam and Trevor then discuss Washington. The CAAF found that the military judge abused their discretion when they determined the conduct leading up to the alleged sexual assault fell under Military Rule of Evidence 412. In coming to this conclusion, the CAAF seems to expand the realm of res gestae and the meaning of “surrounding circumstances” for sexual assault offenses. The CAAF also seems to cast doubt on United States v. Erikson, 76 M.J. 231 (C.A.A.F. 2017), the case analyzing false sexual assault claims under Rule 412. After resolving the Rule 412 issue, the CAAF tackled the military judge’s decision to strike most of the appellant’s testimony. The CAAF found that the military judge abused their discretion again, highlighting that this extreme remedy was not appropriate. While talking about this, Trevor references several state cases, including State v. Mende, 304 Ore. 18 (Or. Sup. Ct. 1987), to explain why the caselaw the Government and the dissent rely on is unpersuasive.

Raquel finishes the episode with post-trial motions, specifically related to confinement conditions.

Send us your questions, comments, and feedback at litigator.libations@gmail.com!