Articles Tagged with military judge

In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench.  (I have noted over the years that it takes most judges about a year to get their relative bearing.)   I think we can all echo his comments and find a myriad of examples from our own and other cases.  What I wanted to comment on though was something in the section about keeping track.  If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

In the United States v. Jones the facts cited by the court show a consent defense.  However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one.  There being no evidence of an affirmative waiver the findings and sentence were set aside.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999).

We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony.  As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor.

At this point, the military judge interjected and asked 11 foundational questions of the witness. The questions were limited to Major D’s past service as an enlisted Marine in the same MOS as the appellant, his supervisory responsibilities as a Marine Corps gunnery sergeant within that MOS, the total number of years he served within the MOS, and the duties generally assigned within the MOS. Defense counsel did not object to any of the 11 questions asked by the military judge.

The NMCCA did not find the military judge’s laying a foundation for admissibility deprived the accused of a fair trial, in United States v. Davis, NMCCA 200900406 (N-M.C. Ct. Crim. App.  15 December 2009).  The court did not opine on why the trial counsel was unprepared to lay a foundation for the witnesses testimony, but did consider the failure of the defense to object as adverse to the accused.

Bottom line to the case:  trial counsel need not prepare to lay a foundation for witness testimony or documents, because if they don’t the military judge will do it for them.  Teaching point, trial counsel need not be aware of the rules for admission of testimony and laying a foundation, and they need not interview and prepare their witness in advance of trial.

United States v. Story.  Here the issue is two-fold: what is the response when the members want to call a witness, and what is permissible on appeal to demonstrate prejudice.  ACCA found error in the military judge denying the members an opportunity to call a witness.  On appeal, ACCA found that documents submitted by appellate government and appellate defense could not be considered.  This seems odd, because the defense is trying to show prejudice from the error and the government is trying to show lack of prejudice.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued:

MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head.