This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

“That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.”

 Bill Otis, Politics & Prosecution, a Toxic Brew, 16 August 2014.

I am not a libertarian, but I am one of the defense counsel and independent liberals Mr. Otis will frequently berate, sometimes with rather over the top hyperbole.  I read crimeandconsequences regularly because many posts raise important questions, but you have to take note of the style.  But on this toxic issue we are of the same mind; both as to the Perry prosecution issue and also the abuse of power.

When politics drives criminal (read military) justice policy, there is a great danger that people will not apply reason, ethics, and the law – politics and justice do not generally go hand-in-hand.

Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).

Haggerty was accused of defrauding Mayor Bloomberg.  During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.

For the military defense lawyer an immediate lesson is that the defense failed to object at trial.  When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error.  In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence.  But they were not raised on appeal so the court did not address them.  Trial defense counsel should not be dissuaded from objecting.  As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.

New York doesn’t have a Code of rules of evidence; but they do follow the federal rule of evidence as to best evidence found in FRE 1002.  That rule is the same as found in Military Rule of Evidence 1002, which is applied in a court-martial, prosecuted under the UCMJ.  Even though the New York court applied waiver and did not reach the issue Prof. Miller goes on to give his analysis. Prof. Miller concludes that the objection, if made should have been sustained. The issue was who owned the money in the trust – a central issue according to Prof. Miller.  The point here being what is the expected testimony about the contents of a trust document, and how can a uninvolved witness testify to those contents without introducing the trust document.

The prosecution argued that the language in the trust document was irrelevant to proving ownership of the funds.  Prof. Miller finds that the prosecution could not use [Military] rule of evidence 1004(d) to avoid the issue.  Prof. Miller then argues that the prosecution could not use the “independent knowledge” exception found in the best evidence rule.  As Prof. Miller points out, it would be impossible for the witness to independently know who owned the funds without the best evidence of the trust and the trust documents.

I have at times used the best evidence rule to object to hearsay testimony about the contents of documents, and even audio-video recordings.  So for example it would be, in my view improper for a CID, NCIS, OSI, CGIS, agent to testify about the contents of an audio at which she was not present during the recording.  This would be different to testifying about the actual interview of an accused, which was also recorded, or the ubiquitous pretext phone call in military sexual assault cases.  In the first scenario there is a hearsay and best evidence objection, in the second the agent was present and heard the statements, thus has knowledge independent of the video to testify about.  Another related issue would be something such as an email or text message.  The law enforcement agent can’t testify about the contents unless the sender or recipient.  You need a different witness who will also testify to authenticity. I would suggest that authenticity is a big deal in regard to emails and texts because of the ease with which they can be spoofed or spoiled (in the context of spoliation of evidence).

In United States v. Jones, 26 M.J. 197, 201 (C.M.A. 1988), the court noted that the military rules of evidence have broadened the scope of the best evidence rule.  This is actually good for both sides, as the court in Jones essentially found in finding defense evidence of a videotape improperly excluded.

I found United States v. Hernandez, NMCCA 200501599, 2007 CCA LEXIS 183 (N-M Ct. Crim. App. June 12, 2007)(unpub.), an interesting read generally.

screenshot-by-nimbus has published a symposium – articles related to military justice, specifically sexual assault cases.  Both sides will find something in the articles. Of particular interest are two articles:  Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. SeamoneSex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. SchenckInforming the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry.  Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial.  The MJ gave him a BCD and 8.  ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

As you start to read the opinion you are initially thinking he’s minimizing – as did the court initially think.  You’ve been there right, as a military defense lawyer – tell the judge just enough, etc., etc., etc.

The court reminds of the very point about how an accused who minimizes during the providence inquiry doesn’t necessarily have an improvident plea.  The court said some single or minor inconsistency may be mere attempts by appellant to rationalize his actions, insufficient to invalidate the providence of the plea. Ultimately Stout’s statements went beyond minimization and set up substantial inconsistencies.  I might add that if the facts are as Stout and the stipulation say, this is not a case that should have been prosecuted.  But it’s 2014 and . . . (insert rant if you care to). The Army Court of Criminal Appeals (ACCA) cites to United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011); United States v. Rokey, 62 M.J. 516 (A. Ct. Crim. App. 1995), as authority.

Often an accused is reluctant to admit to a particular aspect of an offense. However, that should not vitiate his guilty plea if he recognizes that the evidence against him will prove the point, and he admits his guilt to the offense. We should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior. A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.

United States v. Hall, 73 M.J. 645, 648 (A.F. Ct. Crim. App. 2014).

I always knew there was a reason – other than the case name – why we old timers refer to the Care inquiry (along with other names such as Suzuki credit, Allen credit, etc., etc., etc.). The Court of Appeals for the Armed Forces has over time ensured that before an accused can plead guilty to a UCMJ offense at court-martial, there must be a very careful inquiry of the facts and circumstances. When a military judge fails to conduct a careful inquiry which leads to inconsistency issues, the decision will be reviewed for an abuse of discretion.

I wonder where the TC was in all of this – not putting up a stout defense of the record apparently.  Message to TC, you have a duty to your client to protect us from an errant judge.  You need not feel intimidated and remain silent when the military judge asks you and the military defense counsel if you want any additional questions.

The military SVC programs have been ongoing for a little while.  So some signs of the good and bad are starting to show.  It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations.  One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case.  But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting.  The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount.  The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice.  That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations.  The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary.  And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim.  So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything.  The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial.  United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement.  For example, by executive order the President has declared that certain matters may not be bargained away.  R.C.M. 705(c)(1)(B).  An acceptable term is restitution.  As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial.  That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto.  To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that.  Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal.  For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer.  It is far better to enter negotiations informed, rather than have a potential problem on appeal.

No. 14-5007/AF.  U.S. v. Steven S. MORITA.  CCA 37838.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE-DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.

You can see an analysis of the case status here.

On occasion I note civilian court opinions that reference or rely on military appellate case law. In my view, because of technology we see more courts, especially federal courts, cite to military appellate case law. In United States v. Buchanan, the accused sought to prevent a guardian ad litem (GAL) from filing motions. The court denied the accused’s motion, and in the process cited to LRM v. Kastenberg, 72 M.J. 364, 358 (C.A.A.F. 2013).

The older the alleged other acts the worse the case for admission of MRE 404(b) matter in my view.

Trial counsel will often seek to admit prior bad acts through MRE 404(b).  The UCMJ does not have rules of evidence in the statute, the rules of evidence are published by the President using his power to make court-martial rules and procedures.  The rules of evidence (current as of 1 Aug. 14) are published in the Manual for Courts-Martial.

As I have routinely cautioned, be alert to and challenge “talismanic incantations” of MRE 404(b) admissibility that merely cites the rule.  You should require the trial counsel to cite which specific exception(s) they rely on, then be precise how the supposed other acts will actually serve to make that or some other critical fact provable.

The prosecution cannot offer prior bad acts just to show, and which merely show, a bad person who may have some predisposition to commit the crime.  United States v. Humpherys, 57 M.J. 83, 90-91 (C.A.A.F. 2002).  This makes sense, profiling and propensity have rarely been a legitimate consideration for trials, except for military sexual assault cases.

Challenging, often through motions in-limine, such evidence should be a stock-in-trade for your military defense lawyer.  Under the UCMJ and Manual for Courts-Martial, as well as the various Army Court of Criminal Appeals rules, a military defense lawyer can file motions in advance of trial.  It is a good idea.  It is better to litigate the issues before the trial counsel prosecutor has a chance to have them mentioned in front of the members (the jury in civilian parlance).

If the evidence fails any of the three tests, it is not admissible.  United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992); United States v. Reynolds, 29 MJ 105, 109 (C.M.A. 1989).  The Reynolds test requires the prosecution show the evidence on the other crime reasonably supports guilt of that other crime (an opportunity for the defense to show how a trial within a trial may occur); that the other crime is supportive of the theory for its admission; and survive a MRE 403 balancing test.  See United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006); United States v. Yammine, (C.A.A.F. 2010).

When it comes to the relevance of a prior bad act it seems to me that a factor must be how close in time to the charged offenses.  If it is a prior bad act of distributing some drugs a few weeks before the alleged offense, then there is a proximity arguing for admission.  However, a distribution many years ago before joining the military is not proximate and should be considered inadmissible.  I do not say such an act is automatically or per se inadmissible.  And that’s the thrust of the court’s decision and analysis in United States v. Wallace, in which the Fifth noted the circuit law that remoteness may weaken probative value, but remoteness has never been held to be a per se bar for admission.  The court also cautioned that there was no per se rule of admission either.

Your military defense lawyer should also be aware that prior acts that resulted in a court-martial AND an acquittal might still be used in a later trial under MRE 404(b).  Read United States v. Tyndal, as an example.  I encourage clients to read along with me on the UCMJ, court-martial, and military sexual assault to be informed about their case.

Back to Reynolds, especially in sexual assault cases, but in all cases when balancing matters under MRE 403, reference to the “Wright factors” is helpful at the trial level and will allow for some deference to the military judge on appeal.  United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)(listing seven non-exclusive factors).  One of the specific factors is – temporal proximity – so it doesn’t just seem, it is.

So, it’s still a contextual analysis of the prior acts and how they may go to prove the current facts, without being more prejudicial than helpful.

Get your military defense lawyer to explain these issues, or if you need a case analysis get in touch with us.

The Military Judge’s Benchbook (MJBB) is the bible for how a military judge will instruct the members of your court-martial under the UCMJ.  Your military defense lawyer should be well versed in this book and these instructions.  The military judge will tell the members what elements of the crime must be proved beyond reasonable doubt; she will tell them about how they may consider evidence presented in court; and she will tell them the voting procedures they must follow to ensure a secret written ballot without undue command influence.

Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that.  Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB.  See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002).  On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record.  United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001).  That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.

It may not matter if the judge does not follow the MJBB when instructing the members.  For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless.  We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.

However, there are times when it is necessary to go outside the MJBB to look for an appropriate instruction.  Usually this happens when the prosecution is seeking to assimilate a federal or civilian crime under Articles 133 or 134, UCMJ.  I have done this, for example by referring to the Eleventh Circuit instructions is CP cases.

So, it is helpful for your military defense lawyer to know that there is a good resource for civilian, primarily federal members (read jury) instructions.  One of my favorite daily reads is the Federal Evidence Review blog. The blog is an excellent resource on federal evidence.  They have two posts relevant to instructions: a main “page,” and an “update” for several circuits.

It appears one of the primary updates is intended to counter a growing problem – social media, cellphones in court, and the like.  Thankfully this does not seem to be a problem at court-martial or other actions under the UCMJ.

The chief judge of the United States Army Trial Judiciary is responsible for publishing and updated the MJBB.  You can find a copy here.  If you are a military defense lawyer and practice at court-martial, you can also download an electronic version which works in MSWord, but unfortunately not WordPerfect.

And to digress a little, there is a presumption that members follow the instructions.  That’s a nice social and legal “policy,” but if research is to be believed the presumption doesn’t work.  Check out an article by one of my favorite resources, The Jury Verdict.  Can members put aside their pride and prejudices?  Can jury members ‘forget’ the inadmissible evidence they just heard?  Can . . . . . .?

New Military Rules of Evidence publication

 The Military Rules of Evidence (MRE) are published by the President in the Manual for Courts-Martial (MCM).  The Army has published a supplement to the current MCM which has all of the MRE and some interpretative matters in one easy to find location.  When the president publishes the MCM he does so under specific Congressional authority to make rules for the governance of courts-martials found in Article 36, UCMJ.  He is required to come as close as possible to the rules found in federal district court prosecutions.  The Manual for Courts-Martial, currently in a 2012, edition sets out the rules of procedure.  You can find a copy at this link (you will also see the 2013 and 2014 amendments).  The President may expand or broaden a rule in favor of an accused.  The President can’t restrict a rule that favors the accused.  This is information your military defense lawyer and attorney must know in order to properly defend you.

A short history of the UCMJ can be found at this Library of Congress link, and a wealth of military law history – especially the development of the UCMJ – can be found here.

Federal district courts follow the Federal Rules of Evidence.  There is an advisory committee on the federal rules of evidence, and most important there is a sort of legislative history and guide to their meaning.  It is good for your military defense lawyer to know this because of how the military rules of evidence become adopted.  The military rules of evidence are initially processed by the DOD Joint Service Committee on Military Justice (see their MJ fact sheets).  What is important here is that under MRE 1102, any amendment to the federal rules sections 1-II, IV, and VI-XI, becomes an amendment to the MRE within 18 months of passage unless the President elects to do something different.  Because of this, your military defense lawyer will know that there may be valuable research in federal district court cases to help interpret and apply a rule in your favor.

One of the rules that tends to follow the federal rule pretty closely is MRE 412, this is the “rape shield” rule that is often an issue in military sexual assault cases.  There is little difference with the federal rule.  But you will not find MRE 313 in the federal rules of evidence.  That rule regulates how the military does health and welfare inspections and similar activity.  Included there is the unit sweep or sampling for drugs.  There are quite a few other rules in Part III of the MRE that address important statutory and constitutional rights that are not found in the federal rules.

How is a military court run – what procedure and rules are followed.  I typically tell people that the procedure and rules of evidence in federal district court are very similar to how a court-martial goes – except for the uniforms.  At my website I have set out the general procedure that is followed from start to finish.

One of the steps in the process is for motions to be litigated.  Motions in limine are an excellent way for your military defense lawyer to try and manage the evidence for or against you.  By filing a motion in limine it might be possible to get an advance ruling that certain evidence cannot be used against you.  That way the members don’t hear the evidence and the objection, and later have to be told to forget it.  The law presumes people will set aside anything the judge tells them not to consider.  But research indicates otherwise.  A robust pre-trial motions practice may be helpful to how your court-martial is prosecuted under the UCMJ rules and procedure.