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.

Listen up:  “Every occasion of a proved false allegation has an insidious effect on public confidence, sometimes allowing doubts to creep into when one shouldn’t exist.”  Said the judge on sentencing.

That’s right, the failure to hold people accountable for false accusations harms true victims.

Col Christensen of POD says this doesn’t happen and that people don’t make false allegations for these reasons.  Sorry mate, read this.

A girl who falsely accused two army soldiers of trying to rape her because she felt ashamed about sleeping with them both has been jailed.

The following is called a motive to lie in courtroom parlance.

The following day her boyfriend heard rumours she had been unfaithful and confronted her.

Richess ‘panicked’ and made up the false claim that the two innocent men, aged 23 and 24, had forced themselves on her because she was too ashamed to tell him she had cheated on him.

Her partner of three years made her go to the police to report the ‘attack’.

Richess even gave a ‘tearful’ account of the co-called crime to officers and ‘illicitly gained their empathy.’

Yes, tears can be faked, as can other “symptoms” of sexual assault.  Yes, a false complainer can present with all the signs and symptoms of someone actually assaulted.

In the U.S. military, it is unlikely, not impossible, that any action would have been taken against this liar, except coddling her because she deserves concern for her problems.

Ask the prosecutor in this case.

In re Kline.

Military prosecutors are bound by Service rules of professional responsibility.  Those rules are based on the ABA Model Rules.

The ethical rule regarding prosecutorial disclosure in the District of Columbia, as in most states, incorporated the “tends to negate guilt” standard promulgated by the ABA in its Model Code of Professional Responsibility to define the class of evidence required to be disclosed under Rule 3.8.

The Supreme Court reiterated that basic tenet in Cone, noting that “[a]lthough the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.” Cone v. Bell, 556 U.S. 449, 470 n.15 (2009) (citations omitted).

1 May 2015 saw the release of a number of reports and memorandums regarding military sexual assault.  Some initial takeaways (which in my view certain people are either deliberately ignoring or misreporting).

No POD, the conviction rate is not 5%– the conviction rate is 67% for penetrative offenses, and 84% for non-penetrative (conctact) offenses.

If POD is claiming only a 5% conviction rate, then they are presuming guilt in each allegation made, regardless of the truth of the claim and the amount of evidence available.

No POD, all of the reported conduct is NOT rape.  The RAND survey covered both penetrative and non-penetrative contact offenses.  (And, of course, an unwanted French kiss meets the definition of a penetrative offense.)

No POD, the potential false reporting rate is 24% in the military, which is possibly higher or the same with the civilian rate.

  • The report addresses a range of misconduct-it does NOT report on rape.
  • Out of the 6,131 reports of sexual assault in FY 2014, there were 4,768 Service Member victims who made a report for an incident that occurred during military Service.
  • According to the 2014 RAND Military Workplace Study, the percentage of active duty women who experienced unwanted sexual contact in the past year declined from an estimated 6.1% in 2012 to an estimated 4.3% in 2014, a statistically significant decrease.11 For active duty men, the estimated prevalence rate of unwanted sexual contact trended downwards from 1.2% in 2012 to 0.9% in 2014.12, 13, 14 Based on these prevalence rates, an estimated 18,900 Service members experienced unwanted sexual contact in 2014, down from the 26,000 Service member victims estimated in 2012.

Here is the relevant military justice data from the 2014 report.

  • The following information is for those subjects’ cases whose investigations were complete and case disposition results were reported in FY 2014. In FY 2014, 2,625 subjects investigated for sexual assault were primarily under the legal authority of DoD. However, as with the civilian justice system, evidentiary issues may have prevented disciplinary action from being taken against some subjects. In addition, commanders declined to take action on some subjects after a legal review of the matter indicated that the allegations against the accused were unfounded, meaning they were determined to be false or baseless. Command action was not possible in 24% of the cases considered for action by military commanders (Figure S) in FY 2014.
  • For the remaining 76% of cases considered for command action, commanders had sufficient evidence and legal authority to support some form of disciplinary action for a sexual assault offense or other misconduct. Figure S displays command action taken from FY 2009 to FY 2014 and Figure T displays command action in FY 2014 for penetrating versus sexual contact crimes. Since FY 2007, the percentage of subjects who had charges preferred to court-martial has steadily increased and the percentage of subjects for whom command action was not possible has steadily declined.
  • Not all cases preferred to court-martial proceed to trial. In certain circumstances, DoD may approve a resignation or discharge in lieu of court-martial (RILO/DILO). Furthermore, Article 32 (pre-trial) hearings can result in a recommendation to dismiss all or some of the charges. Commanders may use evidence gathered during sexual assault investigations and evidence heard at an Article 32 hearing to impose a nonjudicial punishment (NJP) against subjects. As seen in Figure U, the majority of cases preferred to court-martial, for both penetrating and sexual contact offenses, proceeded to trial.

 

 

 

 

 

 

 

 

 

 

 

 

http://www.ktvz.com/news/politics/study-sexual-assault-in-military-plummets/32720674

http://sapr.mil/public/docs/reports/FY14_Annual/FY14_Annual_Report_SecDef_Memo_Initiatives.pdf

http://www.defense.gov/news/newsarticle.aspx?id=128717

 

There are two items from Canada that are worth the read.

Marie Deschamps, C.C. Ad.E., External Review Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015.

Under the standard articulated by Criminal Code and the Supreme Court of Canada, genuine consent may be communicated by word or conduct. However, where either party indicates by any means—verbal or not—that he or she is uncomfortable or reluctant to continue with the sexual activity, an obligation crystallizes on the other party to specifically obtain consent before proceeding any further. While the Court did not explicitly require that this consent be verbal, as a practical matter where there is doubt as to whether or not a party has consented to sexual activity, the only clear way to dispel such doubt will be to verbally seek consent.

. . .

In this regard, the ERA notes that there has been some public debate as to whether sexual activity in the absence of express or verbal consent constitutes sexual assault. For example, some universities have written into their student codes of conduct that individuals must obtain express verbal consent before engaging in sexual activity in order to remove any possibility of ambiguity or misunderstanding.198 In the ERA’s view, such a requirement is unrealistic and risks creating more harm than good. It is highly improbable that individuals will seek each other’s verbal and express consent before and during every stage of sexual activity. In many, if not most, consensual interactions, the individuals involved communicate to each other through nonverbal means their willingness to participate in the activity. To create a requirement for express or verbal consent, absent which the activity constitutes assault, risks criminalizing genuinely consensual interactions between autonomous adults. At the same time, such a requirement creates a standard that is hard to implement and therefore may fail to protect individuals against truly coercive and abusive conduct.

In the ERA’s view, the standard set by the Supreme Court strikes an appropriate balance between recognizing the realities of human intimate relationships, and the need to establish clear consent on the part of all parties to participation in sexual activity. This is not to say that the clear, verbal communication of consent should not be encouraged. Obviously, the more clearly individuals can communicate with each other about their willingness to engage in sexual activity, the less likelihood there will be for misunderstanding or coercive conduct. However, the ERA is concerned that a rule which requires verbal consent in all circumstances is overbroad, unenforceable and therefore of limited utility. Instead, the concept of consent should be clearly stated to members in CAF policies, and explained through mandatory training.

The report takes a stab at addressing alcohol–they do not advance the canard that one drink means no consent.

To be clear, Canadian courts have found that simply by consuming alcohol, a complainant does not necessarily become incapacitated and unable to consent to sexual activity. Impairment is not equivalent to incapacity; nor is alcohol-induced imprudent decision-making, memory loss, or loss of inhibition or self-control.( R. v. Jensen; R. v. J.M.W., [2004] O.J. No. 1295 (Ont. S.C.J.)) The ERA notes that, in this respect, Canadian law differs from new codes of conduct being adopted by some American universities, some of which indicate that the mere consumption of alcohol may vitiate consent.  Whether or not a complainant has reached the legal threshold of being incapable of consenting must be determined on the specific facts of a given case. Canadian courts have held that the absence of consent can be proven by circumstantial evidence, including the number of drinks or the kind of drugs consumed, the slurring of words, loss of physical control (i.e. stumbling, unable to control limbs), a subsequent black-out, the inability to concentrate or to engage in decision-making, reported feelings of drowsiness and of being disassociated from one’s body, and complete loss of inhibition.( R. v. R.(J.) (2006), 40 C.R. (6th) 97 (Ont. S.C.J.), affirmed 2008 ONCA 200, 59 C.R. (6th) 158; R. v. G.(L.) (2007), 228 C.C.C. (3d) 194).

The report makes this reference to the second item worth the read.

In Canada, the concept of consent was clearly elucidated more than fifteen years ago in the Supreme Court of Canada’s seminal judgment, R. v. Ewanchuk., [1999] 1 S.C.R. 330.

No. 15-0330/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE.

The decision of the Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of United States v.Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

If the vaunted FBI examiners can make errors, then surely the examiners at USACIL, DCFL, and similar “labs” can have problems.

One of the underlying issues may be that examinations for law enforcement purposes are not “blind.”  What do I mean by that?  Go back and look at a few examinations you’ve seen for your case recently.  When the samples are submitted for testing the field agent normally submits a statement or outline of the case.  Essentially, they are telling examiners the result they want–the evidence matches the suspect.  See comments here.  I know I talk about this frequently–the confirmation bias phenomenum–but here is my evidence Prof’s thoughts on how the manner in which samples are submitted, and tested, can lead to the potential for a flawed result.

Commentators have identified bias as a serious problem in the forensic setting. As one commentator noted: “To the extent that we are aware of our vulnerability to bias, we may be able to control it. In fact, a feature of good scientific practice is the institution of processes—such as blind testing, the use of precise measurements, standardized procedures, statistical analysis—that control for bias.” A 1996 National Academy of Sciences report on DNA testing recommended that laboratory procedures “be designed with safeguards to detect bias and to identify cases of true ambiguity. Potential ambiguities should be documented.

Keep in mind that internal quality assurance reviews do not solve this potential problem.  The incentives for the QA examiner are no different than the initial examiner.  Some of you may remember from quite some years ago the Brooks AF drug lab scandal.  This involved a blind negative sample submitted by AFIP, which was reported by the laboratory as positive for a controlled substance.  I remember a case where the female client’s sample was reported positive for a controlled substance.  It was not until the case reached an adsep board and we got “discovery” that we noticed that the testing data showed the presence of male DNA in the sample.  The government’s expert testified that the result was correct, but that it must have been contaminated somewhere in the collection and testing process.  Despite this the command persisted in going forward to a finding of no misconduct.

Here is a piece from Marc Green, about how these human factors mentioned above can affect the reliability of a forensic test result.  Whereas the FBI describes the handwriting methodology.  They have this interesting statement.

The FBI Laboratory has not established a specific number of “points” or characteristics needed to identify a questioned writing as having been prepared by a particular individual. In order for a forensic document examiner to identify an individual as having prepared a questioned writing, agreement must exist between significant characteristics in the questioned and known writing with no significant differences. The examiner must explain any exceptions.

Yes, there is a wide degree of subjectivity.  See here for a discussion of the points issue.  Prof. Jennifer Mnoonkin writes here on fingerprints.

The point here is that you yourself should not engage in your own blind confirmation bias–which is to accept without examination the findings of a forensic examination.  As several writers point out, there may be quite a bit of other evidence in your case which goes to prove the accused’s guilt, and that the forensic examination is merely icing on the cake.  But in close cases it’s worth a read to peel the onion on forensic tests and reports.  Certainly the research and questions about the reliability of forensic testing may well help lay a foundation for expert assistance.  There may be support for what it is the expert is going to do for the defense.

Under the “old” Article 32, the right to call and examine witnesses and to obtain production (discovery) of evidence was pretty robust.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing.  That audio could then be transcribed into a verbatim transcript.  The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

This was a reason I always wondered why the Air Force and Coast Guard didn’t record the 32.  Although the cynical thought was that it prevented the defense from having a record to use for impeachment.

But here is the question for the current Article 32 pretrial hearing.  Can the hearing be properly used as a substitute for a deposition, and testimony used in evidence should a witness become unavailable for trial.  I think the answer should be NO.  Largely I think this is because of the intent to avoid discovery and an appropriate amount of cross-examination of witnesses who did attend.  There is now almost no discovery and the ability to cross-examine witnesses who do appear is more limited.  Thus there is a strong constitutional argument that trying to use a transcript of Article 32 testimony violates the Sixth Amendment Confrontation Clause.

While the likelihood of needing prior testimony may not be a frequent event, there may come another day where this collateral impact of changing the Article 32 may come back to haunt.  On balance the intent to adversely affect the ability of the defense to prepare for and defend against a charge has been accomplished-but at a cost to a potential prosecution.

On today’s CAAF daily journal we find:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

  1. WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.
  1. WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY’S ACTION DID NOT APPROVE ONE.

Then Navy-Marine Corps Court said:

Here, after adequate investigation into the matter, trial defense counsel made a tactical decision not to call any of the potential character witnesses that the appellant suggested.  The tactical reasoning behind this decision was to avoid opening the door to potentially damaging evidence that the Government could offer in rebuttal. This tactical reasoning was reasonable and, as such, we agree with the conclusion of the DuBay judge that trial defense counsel was not deficient in failing to call sentencing witnesses.

Trial defense counsel also decided not to offer any military records documenting the appellant’s combat deployments.  Trial defense counsel again expressed concern that offering such evidence would do more harm than good by opening the door for rebuttal by the Government. With the benefit of hindsight, the tactical reasoning is questionable since it is unlikely that the Government could have effectively rebutted official military documentation of the appellant’s deployment history.

Interesting, because I just did a case where we argued for a Dismissal only (and got it).  And I’d had the discussion with military counsel about the Blunk letter we used to have in the old days.

In United States v Blunk we held that defense counsel “violates no legal or ethical principle in . . . following . . . instructions to present nothing on” the accused’s behalf which might influence the court-martial to reject a punitive discharge as an appropriate punishment.

United States v. Weatherford, 19 U.S.C.M.A. 424, 425, 42 C.M.R. 26, 27 (C.M.A. 1970).

Standard Blunk letters became the norm for a case–actually the few–cases of BCD Strikers.  See United States v Blunk, 17 USCMA 158, 160, 37 CMR 422 (1967).

Hence, we believe the better practice in any case is for counsel, if he desires to protect himself against later, unjustified attack, to secure a statement in writing from his client and retain the same in his possession. In event of the accused’s later disavowal of meaures for which he himself is responsible, it can be made available as evidence that the allegations are in fact false. And certainly we would not expect any appellate attorney, as an officer of the court, to level an attack on trial defense counsel without first making inquiry of their mutual client in order to ascertain the facts.

United States v. Blunk, 17 U.S.C.M.A. 158, 161, 37 C.M.R. 422, 425 (C.M.A. 1967).

I will say that we very quickly got away from BCD-Sriking, especially in MJA cases.  Too often the MJ would give the BCD, but was going to anyway, and also some hefty Brig time because the accused did not see the severity of the BCD.

[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.

United States v. Herrera,  __ F.3d ___ (10th Cir. 2015).