2008 (Transition)
United States v. Mackie, 66 M.J. 198 (a
military judge has the authority to order a sanity board after referral
under
RCM 706 if it appears there is reason to believe the accused lacked
mental
responsibility at the time of a charged offense or lacks the capacity
to stand
trial; a motion for a sanity board should normally be granted if it is
made in
good faith and is not frivolous).
United
States v. Mitchell, 66 M.J. 176 (before
accepting a guilty plea, the military
judge must conduct an inquiry of the accused to ensure that there is an
adequate factual basis for the plea; this inquiry must reflect that the
accused
understands the plea and is entering it voluntarily; the accused must
admit to
each element of the offenses to which the accused is pleading guilty;
if an
accused sets up matter inconsistent with the plea at any time during
the
proceeding, the military judge must either resolve the apparent
inconsistency
or reject the plea).
United
States v. Allende, 66 M.J. 142 (the military
judge authenticates the record
of each general court-martial).
United
States v. Reed, 65 M.J. 487 (in the course of
addressing command influence issues, military judges must consider
apparent as
well as actual unlawful command influence).
United
States v. Townsend, 65 M.J. 460 (military judges
should apply a liberal grant
mandate in ruling on challenges for cause asserted by an accused).
(there is no basis for the application of the
liberal grant policy when a military judge is ruling on the
government’s
challenges for cause).
United
States v. Hunter, 65 M.J. 399 (military law
imposes an independent
obligation on the military judge to ensure that the accused understands
what he
gives up because of his plea and the accused’s consent to do so must be
ascertained; the accused must know and understand not only the PTA’s
impact on
the charges and specifications which bear on the plea, but also other
terms of
the agreement, including consequences of future misconduct or waiver of
various
rights; reflecting these concerns, RCM 910(f)(4) requires that where a
plea
agreement exists, the military judge shall inquire to ensure: (A) that
the
accused understands the agreement; and (B) that the parties agree to
the terms
of the agreement; this inquiry is part and parcel of the providence of
an
accused’s plea, and necessary to ensure that an accused is making a
fully
informed decision as to whether or not to plead guilty; an inquiry that
falls
short of these requirements and fails to ensure the accused understands
the
terms of the agreement is error).
United
States v. Rhoades, 65 M.J. 393 (under RCM
901(d)(3), if it appears that any
counsel may be disqualified, the military judge shall decide the matter
and
take appropriate action).
(the
military judge must rule on a
disqualification motion prior to trial on the merits; because it may be
difficult at that stage to assess with precision whether, or to what
extent,
the grounds for disqualification could affect the trial, the military
judge is
afforded broad discretion in ruling on disqualification motions).
(even
when an accused is willing to waive a
grounds for disqualification of counsel, the military judge has
substantial
latitude in deciding whether to accept the waiver; although courts must
recognize a presumption in favor of an accused’s counsel of choice,
that presumption
may be overcome not only by a demonstration of actual conflict but by a
showing
of a serious potential for conflict).
(in view of the broad discretion afforded a
military judge when acting on a pretrial disqualification motion, the
military
judge is not required to determine whether there is proof beyond a
reasonable
doubt that the attorney is guilty of a statutory post-employment
restriction,
such as 18 USC § 207(a)(2), designed to protect the integrity of
government
functions, including trial proceedings; rather, a record that
demonstrates a
reasonable likelihood that counsel’s representation would violate that
restriction is sufficient to show a serious potential for conflict that
may
overcome the presumption in favor of the accused’s counsel of choice;
under
such circumstances, the military judge has discretion to disqualify
counsel).
(the
decision by the military judge to
disqualify appellant’s civilian defense counsel did not constitute an
abuse of
discretion and did not deprive appellant of his right to counsel of
choice
under the Sixth Amendment, where the record was sufficient to
demonstrate a
reasonable likelihood that the counsel’s representation of appellant at
trial
would violate 18 USC § 207(a)(2), a statute designed to protect the
integrity
of government functions, including trial proceedings; civilian defense
counsel
had served as an active duty judge advocate at appellant’s installation
immediately prior to entering private practice and had provided advice
to CID
agents and other military trial attorneys with respect to the
investigation of
appellant that led to the charges at issue, and these events took place
within
the statutory restriction period; as such, counsel’s continued
representation
created a serious potential for conflict, which provided a sufficient
basis for
the military judge to refuse appellant’s waiver of conflict-free
representation).
United
States v. Falcon, 65 M.J. 386 (a military
judge is obligated to reopen the
plea inquiry when a possible defense has been raised and not
satisfactorily
refuted because such a matter would be inconsistent with the accused’s
guilty
plea; however, the mere possibility of a defense, without more, does
not give
rise to this obligation).
(the military judge did not
abuse his
discretion when he did not reopen the providence inquiry to advise the
accused
of the possibility of a partial mental responsibility defense to a
charge of
making and uttering checks without sufficient funds under Article 123a,
UCMJ,
because of statements made during the trial relating to the accused’s
gambling
addiction and his diagnosis as pathological gambler, where there was
the lack
of any testimony that the accused’s diagnosis could have affected his
ability
to form the specific intent to defraud and the lack of any authority
that such
a diagnosis may provide a partial mental responsibility defense).
2007
(the military judge erred when
he advised the accused that his guilty plea waived his right against
self-incrimination with respect to the unauthorized absence offense to
which he pleaded guilty and that he retained that right with respect to
the greater offense of desertion to which he pleaded not guilty, and
then later, when the defense counsel asked the military judge to
consider the accused’s providence inquiry statements after the close of
the government’s evidence, the military judge concluded that he could
consider everything that he had heard up to that point, without further
questioning or advising the accused; this, of course, was error because
it was inconsistent with the advice the military judge gave the accused
on the greater offense of desertion and therefore, beyond the accused’s
express waiver of his privilege against self-incrimination).
(military law imposes an
independent obligation on the military judge to ensure that the accused
understands what he gives up because of his guilty plea and the
accused’s consent to do so must be ascertained).
(after having expressly
advised the accused that the stipulation of fact entered into in
conjunction with his guilty pleas would be used, as indicated in the
stipulation’s first paragraph, for the limited purposes of determining
the providence of his guilty pleas to unauthorized absence and for
determining the sentence, the military judge erred in conducting no
inquiry into a later paragraph of the stipulation that suggested a
broader use by the prosecution of the stipulation and the included
exhibits on the greater offense of desertion; without further inquiry
into this paragraph to clarify the apparent inconsistency between it
and the first paragraph, there was an insufficient basis to determine
that the accused knowingly consented to the use of the stipulation and
the adjoining exhibits in the government’s case on the merits of the
desertion offense).
United States v. Sanchez, 65 M.J. 145 (with respect to
expert testimony offered pursuant to MRE 702, the military judge has a
gatekeeping role; as gatekeeper, the judge is tasked with ensuring that
an expert’s testimony both rests on a reliable foundation and is
relevant).
(four factors that a judge
may use to determine the reliability of expert testimony are:
(1) whether a theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error in using a
particular scientific technique and the standards controlling the
technique’s operation; and (4) whether the theory or technique has been
generally accepted in the particular scientific field).
(the test for determining the
reliability of expert testimony is flexible, and the four factors that
a judge may use to determine reliability do not constitute a definitive
checklist or test; the focus is on the objective of the gatekeeping
requirement, which is to ensure that the expert, whether basing
testimony upon professional studies or personal experience, employs in
the courtroom the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field).
(the military judge’s inquiry
into the reliability of expert testimony is a flexible one, and the
gatekeeping inquiry must be tied to the facts of a particular case; the
trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is
reliable; consequently, the trial judge has the same kind of latitude
in deciding how to test an expert’s reliability as it enjoys
when it decides whether that expert’s relevant testimony is
reliable).
(the focus of the military
judge’s inquiry into the reliability of expert testimony is on the
principles and methodology employed by the expert, without regard to
the conclusions reached thereby).
(under MRE 702, the military
judge is required at a minimum to determine whether the expert
witness’s conclusion could reliably follow from the facts known to the
expert and the methodology used, mindful that conclusions and
methodology are not entirely distinct from one another; trained experts
commonly extrapolate from existing data; whether attempting to
determine if there is too great an analytical gap between the data and
the opinion proffered, or whether the proffered testimony falls outside
the range where experts might reasonably differ, the goal is to ensure
that expert testimony or evidence admitted is relevant and reliable, as
well as to shield the panel from junk science).
(nothing requires that a
military judge either exclude or admit expert testimony because it is
based in part on an interpretation of facts for which there is no known
error rate or where experts in the field differ in whether to give, and
if so how much, weight to a particular fact in deriving an opinion;
such a bright-line requirement would be at odds with liberal
admissibility standards of the federal and military rules; the
adversary system, including vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but admissible
expert evidence).
United States v. Mack, 65 M.J. 108 (when the
legality of an order is at issue, the issue must be decided by the
military judge, not the court-martial panel).
(when the defense moves to
dismiss a charge on the grounds that the charged order was not lawful,
the military judge must determine whether there is an adequate factual
basis for the allegation that the order was lawful).
(the military judge erred by
treating the legality of a pretrial restriction order as a mixed
question of fact and law to be resolved by the court members; as a
matter of law, the presence of factual questions did not relieve the
military judge of his responsibility to decide, as a preliminary
matter, whether the order in the charged breaking restriction offenses
was lawful).
United States v. Schroder, 65 M.J. 49 (before admitting
evidence of other acts of child molestation under MRE 414, the military
judge must make three threshold findings: (1) that
the accused is charged with an act of child molestation as defined by
MRE 414(a); (2) that the proffered evidence is evidence of his
commission of another offense of child molestation; and (3) that the
evidence is relevant under MRE 401 and MRE 402).
(before admitting evidence of
other acts of child molestation under MRE 414, the military judge must
also conduct a MRE 403 balancing analysis, applying factors that
include: strength of proof of prior act --
conviction versus gossip; probative weight of evidence; potential for
less prejudicial evidence; distraction of factfinder; time needed for
proof of prior conduct; temporal proximity; frequency of the acts;
presence or lack of intervening circumstances; and relationship between
the parties).
(when, either during the plea
inquiry or thereafter, and in the absence of prior disavowals,
circumstances raise a possible defense, a military judge has a duty to
inquire further to resolve the apparent inconsistency; the existence of
an apparent and complete defense is necessarily inconsistent with a
plea of guilty).
(military judges should take
particular care to make sure that considerations of mental health do
not put the providence of a guilty plea at issue; RCM 706(a) imposes an
obligation on a military judge to notify the officer authorized to
order a mental exam when there is reason to believe that the accused
lacked mental responsibility for any offense charged or lacks capacity
to stand trial).
(at trial, the military judge
may reasonably rely on both a presumption that the accused is sane and
the long-standing principle that counsel is presumed to be competent;
moreover, the President has assigned the burden of proving lack of
mental responsibility to the accused; thus, when the accused is
presenting his sentencing statement through or with the assistance of
counsel, the military judge may properly presume, in the absence of any
indication to the contrary, that counsel has conducted a reasonable
investigation into the existence of the lack of mental responsibility
defense; this is particularly so when a matter raised during sentencing
does not in and of itself present an apparent or possible defense).
(it may be prudent for a
military judge to conduct further inquiry when a significant mental
health condition is raised during a guilty plea inquiry in light of
military law and practice regarding mental health issues and to obviate
such issues on appeal; whether further inquiry is required as a matter
of law is a contextual determination).
United States v. Cossio, 64 M.J. 254 (military judges
must be careful to restrict findings of fact to things, events, deeds,
or circumstances that actually exist as distinguished from legal
effect, consequence, or interpretation).
2006
United
States v. Madigan, 63 M.J. 118 (if relevant
evidence is destroyed, lost, or
otherwise not subject to compulsory process and such evidence is of
such
central importance to an issue that it is essential to a fair trial,
and if
there is no adequate substitute for such evidence, the military judge
shall
grant a continuance or other relief in order to attempt to produce the
evidence
or shall abate the proceedings, unless the unavailability of the
evidence is
the fault of or could have been prevented by the requesting party).
(the military
judge may exclude drug-test
results if he finds there has been a substantial violation of
regulations
intended to assure reliability of the testing procedures).
(when addressing
command influence issues, the
military judge’s duty is to allocate the burdens between the
prosecution and
the defense; in discharging his duty of allocating the burden, the
military
judge engages in a two-stage process to permit the parties to establish
the factual
predicate related to any issues of unlawful command influence; the
military
judge initially requires the defense to carry the burden of raising an
unlawful
command influence issue; this threshold showing must be more than mere
command
influence in the air or speculation; but because of the congressional
prohibition against unlawful command influence and its invidious impact
on the
public perception of a fair trial, this threshold is low; the test is
some
evidence of facts which, if true, constitute unlawful command
influence, and
that the alleged unlawful command influence has a logical connection to
the
court-martial in terms of its potential to cause unfairness in the
proceedings;
if the military judge concludes that the defense has raised the issue
of
unlawful command influence, the burden shifts to the government to show
either
that there was no unlawful command influence or that the unlawful
command
influence did not affect the proceedings).
(the military
judge has affirmative
responsibilities to avoid the appearance of evil in his courtroom and
to foster
public confidence in court-martial proceedings).
(a military judge
has great discretion in
fashioning a remedy to protect against unlawful command influence).
United
States v. Lewis, 63 M.J. 405 (once unlawful
command influence is raised, it
is incumbent on the military judge to act in the spirit of the UCMJ by
avoiding
even the appearance of evil in his courtroom and by establishing the
confidence
of the general public in the fairness of the court-martial proceedings).
United
States v. Leonard, 63 M.J. 398 (military judges
are enjoined to follow a
liberal grant mandate in evaluating challenges for cause because
implied bias
is reviewed under an objective standard, through the eyes of the public
and
focusing on the appearance of fairness).
(a military
judge abused his discretion and
violated the liberal grant mandate in denying defense challenge of a
court member
for cause where that member revealed that the alleged rape victim’s
responsibilities for his flight gear included packing his parachute and
servicing his flight helmet; in an acquaintance rape case where the
credibility
of the alleged victim was the linchpin of the case, the member’s
significant
relationship of trust with the alleged victim would diminish the public
perception of a fair and impartial court-martial panel, undermine the
appearance of fairness in the military justice system, and give rise to
implied
bias).
United
States v. Zachary, 63 M.J. 438 (a military
judge has a duty under Article 45,
UCMJ, to explain to the accused the defenses that he raises during a
providence
inquiry; Article 45(a) requires that, in a guilty-plea case,
inconsistencies
and apparent defenses must be resolved by the military judge or the
guilty
pleas must be rejected).
United
States v. Moreno, 63 M.J. 129 (military judges
must follow the liberal-grant
mandate in ruling on challenges for cause” asserted by an accused; the
liberal grant
mandate recognizes the unique nature of military courts-martial panels,
particularly that those bodies are detailed by convening authorities
and that
the accused has only one peremptory challenge).
2005
United
States v. Augspurger, 61 M.J. 189 (the military judge should ensure
that
the members’ findings, as announced, are clear as to the factual basis
for an
offense; first, the military judge should properly instruct the members
that if
they except the “divers occasion” language from a specification, they
need to
make clear which allegation was the basis for their guilty finding;
second,
after the military judge examines the findings worksheet but prior to
announcement,
the military judge should ask the members to clarify any ambiguous
findings;
once the findings of a court-martial have been announced, any finding
that
amounts to a finding of not guilty is not subject to reconsideration or
a
post-trial session such as a proceeding in revision).
(it is the responsibility of military judges to ensure that any
ambiguities in
findings are clarified before the findings are announced, and if they
fail to
do so, the appellate courts cannot rectify that error).
United
States v. Rollins, 61 M.J. 338 (when the evidence raises an issue
concerning the statute of limitations, the military judge must provide
the
members with instructions that focus their deliberations on the period
not
barred by the statute of limitations).
2002
2001
United
States v. Pineda, 54 MJ 298 (a defense counsel may
not ask
for a punitive separation from the service in contravention of an
accused’s
wishes, and a military judge must make appropriate inquiries where a
conflict
exists between defense counsel’s request and an accused’s apparent
wishes).
(military judge failed to make adequate inquiries into defense
counsel’s
concession that a punitive discharge was appropriate where there was no
indication on the record that appellant desired punitive separation).
2000
United
States v. Smith, 52 MJ 337 (while the military
judge
should be circumspect and refrain from injecting himself into the
proceedings
by propounding theories of his own for either party, Article 39(a)(4),
UCMJ,
and MRE 104(a) contemplate that the military judge determine the
admissibility
of evidence, which includes reasonable assessment of a party’s position
in a
particular case).
1999
United
States v. Abrams, 50 MJ 361 (RCM 701(g) provides for the
regulation of discovery by the military judge, placing at his disposal
various
means, such as in camera reviews, protective orders, or partial
disclosure, to
ensure the balance between an accused’s right to a fair trial, judicial
efficiency and confidentiality considerations).
United
States v. Gray, 51 MJ 1 (military judge did not abuse
his
discretion and fail to ensure appellant received fair trial in light of
pretrial publicity where, although he rejected defense-proffered
solutions, he
did permit extensive voir dire, instructed the members not to
expose
themselves to any particular information about the accused, instructed
the
members to use common sense in dealing with media coverage, and twice
ruled
that the members were impartial in fact).