I posted yesterday on a new Army case dealing with instructions on an affirmative defense in a court-martial under the UCMJ.
Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.
In his sole assignment of error, the appellant alleges that the military judges erred in failing to instruct the members as to mistake of fact as to consent.
United States v. Matthews is an interesting new Army decision.
In this case the appellate courts ordered a DuBay hearing. During that hearing the prior military judge testified as to his rationale for various decisions at trial. Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error. On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.
On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.
Court-Martial Trial Practice Blog