2012 (September Term)
United States v. Clifton, 71 M.J. 489 (a military judge may not summarily deny a member’s request to recall witnesses for further questioning; in light of Article 46, UCMJ, RCM 921(b), MRE 614(a), and US v. Lampani, 14 MJ 22 (CMA 1982), some analysis on the record is required; rather than summarily approving or denying such a request, a military judge must consider factors such as difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be privileged; and the objections of the parties to reopening the evidence before ruling).
(in this case, the military judge’s summary denial of the member’s request to recall two witnesses for further questioning was plain and obvious error in light of US v. Lampani, 14 MJ 22 (CMA 1982), Article 46, UCMJ, RCM 921(b), and MRE 614(a), where the military judge did not perform an analysis of three of the Lampanifactors before summarily denying the member’s request – that is, he failed to consider the difficulty in obtaining the witnesses and the concomitant delay, the materiality of the testimony that a witness could produce, and the likelihood that the testimony sought might be privileged; in fact, without knowing the nature of the member’s questions, it was not possible to ascertain the materiality of the testimony that the recalled witnesses could have provided; although the military judge committed error by not analyzing three of the four Lampanifactors, Lampani does not provide an exhaustive list of factors to weigh; in a case such as this, it would have been appropriate for the military judge to have considered, among other things, whether the members had already been given an opportunity to ask the witnesses questions).
(the reasons the military judge stated for denying the member’s request to recall two witnesses for further questioning were unsupported by the relevant legal principles; first, the military judge denied the request to recall a medical doctor because he had been permanently excused; the reason is not supported by law because an excused witness can be recalled; second, the military judge denied the request to recall appellant’s wife because the evidence had been closed; this reason for denying the request is also unsupported by law; a plain reading of RCM 921(b) confirms that witnesses can be recalled after presentation of evidence has concluded; RCM 921(b) states that members may request that the court-martial be reopened and that additional evidence be introduced following a military judge’s discretionary ruling on the matter).
Hasan v. Gross, 71 M.J. 416 (the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards; the maintenance of discipline, unit cohesion, and unit morale are command responsibilities and functions; a military judge’s contempt authority is directed toward control of the courtroom; although the military judge here stated that appellant’s beard was a disruption, there was insufficient evidence on this record to demonstrate that appellant’s beard materially interfered with the proceedings).
2011 (September Term)
United States v. Barnett, 71 M.J. 248 (the military judge has an independent duty to determine and deliver appropriate instructions).
United States v. Behenna, 71 M.J. 228 (in regard to form, a military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law).
(a military judge is only required to instruct on a defense when there is some evidence in the record, without regard to credibility, that the members could rely upon if they chose; in other words, a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could have found in the favor of the accused in regard to that defense).
United States v. Nash, 71 M.J. 83 (a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case).
(the Rules for Courts-Martial provide that military judges must remove any member who has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged).
(while the military judge is in the best position to judge the demeanor of a member, in certain contexts, mere declarations of impartiality, no matter how sincere, may not be sufficient).
United States v. Ballan, 71 M.J. 28 (a military judge may not accept a plea of guilty until the elements of each offense charged have been explained to the accused and unless the military judge has questioned the accused to ensure that he understands and agrees that the acts or the omissions constitute the offense or offenses to which he is pleading guilty).
United States v. Hayes, 70 M.J. 454 (Article 45, UCMJ, includes procedural requirements to ensure that military judges make sufficient inquiry to determine that an accused’s plea is knowing and voluntary, satisfies the elements of charged offenses, and more generally that there is not a basis in law or fact to reject the plea; specifically, if an accused after arraignment makes in irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty).
(consistent with Article 45, UCMJ, if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge who fails to do so has abused his or her discretion).
(the threshold for determining when additional inquiry is required when a matter is raised that potentially offers the accused a defense to a guilty plea is the possible defense standard; an accused is not required to present a prima facie defense before the threshold for further inquiry is met; the possible defense standard is intended to serve as a lower threshold than a prima facie showing because it is intended as a trigger to prompt further inquiry pursuant to Article 45, UCMJ, and United States v. Care, 18 CMA 535, 40 CMR 247 (1969), not to determine whether the defense is available or whether members in a contested case should be given an instruction; adherence to the possible defense standard also furthers Congress’s intent behind Article 45, UCMJ, to ensure the acceptance of a guilty plea be accompanied by certain safeguards to insure the providence of the plea, including a delineation of the elements of the offense charged and an admission of factual guilt on the record).
(an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea).
(not every mitigating statement or word during a guilty plea requires further inquiry; thus, a military judge is not required to reopen a plea and inquire further where an accused raises the mere possibility of a defense).
(even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obliged to make further inquiry to resolve any apparent ambiguity or inconsistency).
United States v. St. Blanc, 70 M.J. 424 (if the accused requests trial by military judge alone, the military judge must ensure that the accused has: (1) consulted with defense counsel about the choice; (2) been informed of the identity of the military judge; and (3) been informed of the right to trial by members; in this way, RCM 903 ensures that an accused understands the nature of the choice before waiving the right to trial by members).
United States v. Winckelmann, 70 M.J. 403 (the military judge must provide instructions that sufficiently cover the issues in the case and focus on the facts presented by the evidence).
United States v. Goodman, 70 M.J. 396 (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; to rise to the level of inconsistency contemplated by Article 45(a), UCMJ, matters raised at trial must have reasonably raised the question of a defense or must have been inconsistent with the plea in some respect).
United States v. Pierce, 70 M.J. 391 (members must be instructed on all elements of an offense; military judges have substantial discretionary power in deciding on the instructions to give).
United States v. Schumacher, 70 M.J. 387 (a military judge must instruct members on any affirmative defense that is in issue; a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose; in other words, some evidence, entitling an accused to an instruction, has not been presented until there exists evidence sufficient for a reasonable jury to find in the accused’s favor; thus, the military judge must answer the legal question of whether there is some evidence upon which members could reasonably rely to find that each element of the defense has been established; this test is similar to that for legal sufficiency).
2010 (September Term)
United States v. Ellerbrock, 70 M.J. 314 (trial judges retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant).
United States v. Gaddis, 70 M.J. 248 (military judges retain wide latitude to determine the admissibility of evidence - a determination that includes weighing the evidence’s probative value against certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury).
(trial judges retain wide latitude to impose reasonable limits on cross-examination regarding a witness’s bias or motive to fabricate based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant).
United States v. Eslinger, 70 M.J. 193 (a commander may testify in rebuttal to defense retention evidence that the accused’s retention is not a consensus view of the command, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions).
United States v. Phillips, 70 M.J. 161 (in a panel case, the military judge must instruct the members how to evaluate that evidence).
United States v. Sullivan, 70 M.J. 110 (a military judge retains wide latitude to impose reasonable limits upon cross-examination).
United States v. Hohman, 70 M.J. 98 (the military judge erred in this case by not taking appropriate action to address detailed trial defense counsel’s departure from active duty during a court-martial at the expiration of his active service; RCM 505(d)(2)(B) and 506(c) provide specific options for severance of the attorney-client relationship; among those options, defense counsel may be excused by the military judge upon application for withdrawal by the defense counsel for good cause shown; where the parties have indicated that a defense member has been excused under RCM 505(d)(2)(B), the military judge must ensure under RCM 813(c) that: (1) the record demonstrates that a competent detailing authority has determined that good cause exists for excusing counsel; and (2) that the record sets forth the basis for the good cause determination; in the present case, the military judge failed to place any of the approved reasons for severing the attorney-client relationship on the record prior to the departure of the detailed trial defense counsel from active duty).
United States v. Arriaga, 70 M.J. 51 (a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence).
United
States v. Girouard, 70 M.J. 5 (under RCM
920(e)(2), the military judge had a
sua sponte duty to instruct the court members on LIOs under the
prevailing law
at the time regardless of appellant’s request).
United
States v. Hartman, 69 M.J. 467 (with respect to
the requisite inquiry into
the providence of a guilty plea for a charge against a servicemember
that may
implicate both criminal and constitutionally protected conduct, the
colloquy
between the military judge and an accused must contain an appropriate
discussion and acknowledgment on the part of the accused of the
critical
distinction between permissible and prohibited behavior).
(the fundamental requirement
of plea inquiry
under Care and RCM 910 involves a dialogue in which the
military judge
poses questions about the nature of the offense and the accused
provides answers
that describe his personal understanding of the criminality of his or
her
conduct; a discussion between the trial counsel and the military judge
about
legal theory and practice, at which the accused is a mere bystander,
provides
no substitute for the requisite interchange between the military judge
and the
accused).
United
States v. Clark, 69 M.J. 438 (when assessing
the admissibility of the
evidence of an accused’s demeanor, a military judge must identify the
demeanor
at issue and ask whether the demeanor is itself testimonial or not
testimonial
in nature, or whether evidence of the demeanor at issue includes
improper
commentary on the accused’s silence; if evidence of an accused’s
demeanor is
testimonial or includes an improper comment on silence, the judge
analyzes the
evidence under the Fifth Amendment or applicable statutory and
regulatory
safeguards; where the evidence is neither testimonial nor an improper
comment
on silence, the judge then considers whether the accused’s demeanor is
relevant
under MRE 404(b) or other evidentiary rules relating to relevance).
United
States v. Lofton, 69 M.J. 386 (when asked, a
military judge shall exclude
witnesses from the courtroom so that they cannot hear the testimony of
other
witnesses; the purpose of the sequestration rule is to prevent
witnesses from
shaping their testimony to match another’s and to discourage
fabrication and
collusion).
United
States v. Prather, 69 M.J. 338 (the military
judge must bear the primary
responsibility for assuring that the jury properly is instructed on the
elements of the offenses raised by the evidence as well as potential
defenses
and other questions of law).
United
States v. Pope, 69 M.J. 328 (the decision to
permit or deny the use of
demonstrative evidence generally has been held to be within the sound
discretion of the trial judge; thus, there is no abuse of discretion
under MRE
403 when the challenged demonstrative evidence is relevant, highly
probative of
critical issues, and not unfairly prejudicial).
(when demonstrative evidence
is admitted, the
military judge is required to properly instruct the members that the
evidence is
for illustrative purposes only).
United
States v. Soto, 69 M.J. 304 (a plea of guilty is
more than an admission of guilt - it is the waiver of bedrock
constitutional
rights and privileges; under controlling Supreme Court precedent, it
is,
therefore, constitutionally required under the Due Process Clause of the
Fifth
Amendment that a judge ensure that a guilty plea be entered into
knowingly and
voluntarily; it is axiomatic that the military justice system imposes
even
stricter standards on military judges with respect to guilty pleas than
those
imposed on federal civilian judges).
(in
order to ensure
that pleas of guilty are not only knowing and voluntary but appear to
be so,
detailed procedural rules govern the military judge’s duties with
respect to
the plea inquiry; the military judge must ensure there is a basis in
law and
fact to support the plea to the offense charged).
(as
part and parcel
of the providence of an accused’s guilty plea, the military judge shall
inquire
to ensure that the accused understands the pretrial agreement, and that
the
parties agree to the terms of the agreement; this is necessary to
ensure that
an accused is making a fully informed decision as to whether or not to
plead
guilty).
(it
is the military
judge’s responsibility to police the terms of pretrial agreements to
insure
compliance with statutory and decisional law as well as adherence to
basic
notions of fundamental fairness; it is for this reason that the RCM
910(f)(3)
requires that the military judge shall require disclosure of the entire
agreement excepting the quantum limitations before accepting a plea of
guilty;
further, as required by RCM 910(h)(3), after the sentence is announced,
the military
judge shall both inquire into any parts of the PTA not previously
examined and
ensure that an accused understands all material terms; an inquiry that
falls
short of these requirements and fails to ensure the accused understands
the
terms of the agreement is error).
(military judges need to be
ever vigilant in
fulfilling their responsibility to scrutinize pretrial agreement
provisions to
ensure that they are consistent with statutory and decisional rules,
and basic notions of fundamental fairness).
(a fundamental principle on
pretrial
agreements is that the agreement cannot transform the trial into an
empty
ritual; judicial scrutiny of PTA provisions at the trial level helps to
ensure
that this principle is fulfilled).
(not every procedural failure
in reviewing a
pretrial agreement results in an improvident plea).
(in this case, a provision in
the pretrial
agreement required that appellant request a BCD during the sentencing
phase of
the court-martial; this provision was placed in the quantum portion of
the PTA,
notwithstanding the fact that it was not a quantum limitation on the
sentence;
the provision was neither disclosed to the military judge prior to his
accepting appellant’s plea of guilty (although the military judge
specifically
asked whether there were any conditions in the quantum portion), nor
was it
discussed with appellant before, during, or after the providence
inquiry;
examining the quantum portion of the agreement after the announcement
of
sentence, the military judge did not acknowledge the term requiring
appellant
to request a punitive discharge during sentencing, let alone discuss it
with appellant;
where the provision in question is one that goes directly to the
sentence
requested by an accused and imposed by the military judge, the
provision is
tucked away in the quantum portion of the PTA (although it is not a
sentence
limitation), and the parties fail to disclose the provision in response
to a
direct question by the military judge, the integrity of the guilty plea
process
itself is undermined; under the facts and circumstances of this case,
it
appears that the military judge was unaware that appellant’s request
for a BCD
was required by the PTA; thus, it cannot be said that the request did
not
influence the sentence imposed; under the particular facts of this
case, there
is a substantial basis in law to question the providence of appellant’s
plea
and the plea inquiry was improvident).
United
States v. Jones, 69 M.J. 294 (during a guilty
plea inquiry the military judge is charged with determining whether
there is an
adequate basis in law and fact to support the plea before accepting it;
in
determining whether a guilty plea is provident, the military judge may
consider
the facts contained in the stipulation of fact along with the inquiry
of
appellant on the record).
United
States v. Hutchins, 69 M.J. 282 (the military
judge has a critical role in the
severance of defense counsel; RCM 813 expressly requires the military
judge to note
which counsel are present or absent at each session of the
court-martial;
moreover, under RCM 813(c), whenever there is a replacement of counsel,
either
through the appearance of new personnel or personnel previously absent
or
through the absence of personnel previously present, the military judge
shall
ensure the record reflects the change and the reason for it).
(this case underscores the
importance of the
military judge establishing on the record the reasons for the absence
of
counsel; at trial, if the parties indicate that a member of the defense
team
has been excused by the detailing authority for good cause under RCM
505(d)(2)(B)(iii), the military judge must ensure under RCM 813(c)
that: (1)
the record demonstrates that a competent detailing authority has
determined
that good cause exists for excusing counsel; and (2) that the record
sets forth
the basis for the good cause determination).
United
States v. Blazier, 69 M.J. 218 (lack of
knowledge or unwarranted reliance on
the work of others may make an expert opinion inadmissible: the
military judge,
in his capacity as a gatekeeper, must determine whether the opinion is
based
upon sufficient facts or data and is the product of reliable principles
and
methods reliably applied to the case).
United
States v. White, 69 M.J. 236 (the military
judge has the initial
responsibility to determine whether evidence is relevant within the
meaning of
MRE 401).
United
States v. Savard, 69 M.J. 211 (when one of the
parties so requests, RCM
905(h) requires that the military judge hold a hearing on a written
motion).
(in light of the compulsory
language of RCM
905(h), the military judge erred by refusing to hold a requested
pretrial
Article 39(a) session before rendering his decision to deny a defense
motion to
enjoin the government from deposing witnesses in the Philippines).
United
States v. Diaz, 69 M.J. 127 (military judges
are afforded broad discretion
in deciding whether or not to accept a guilty plea; when an accused
enters a
guilty plea, the military judge is required to make such inquiry of the
accused
as shall satisfy the military judge that there is a factual basis for
the
plea).
United
States v. Yammine, 69 M.J. 70 (for evidence to
be admitted under MRE 414, a
rule permitting evidence of a prior act of child molestation to be
admissible
to show propensity to commit a charged act of molestation, the military
judge
must make three threshold findings: (1) whether the accused is charged
with an
act of child molestation as defined by MRE 414(a); (2) whether the
proffered
evidence is evidence of his commission of another offense of child
molestation
as defined by the rule; and (3) whether the evidence is relevant under
MRE 401
and MRE 402; relevance under MRE 401 and MRE 402 is enforced through
MRE
104(b); the military judge simply examines all the evidence in the case
and
decides whether the court members could reasonably find the conditional
fact by
a preponderance of the evidence; once the three threshold
factors are met, the
military judge must then apply a balancing test under MRE 403; the
importance
of careful balancing arises from the potential for undue prejudice that
is
inevitably present when dealing with propensity evidence; inherent in
MRE 414
is a general presumption in favor of admission).
United
States v. Roberts, 69 M.J. 23 (in order to
properly determine whether
evidence is admissible under the constitutionally required exception to
MRE
412(a), the military judge must evaluate whether the evidence is
relevant,
material, and favorable to the defense; evidence is relevant if it has
any
tendency to make the existence of any fact more probable or less
probable than
it would be without the evidence; in determining whether evidence is
material,
the military judge looks at the importance of the issue for which the
evidence
was offered in relation to the other issues in this case, the extent to
which
this issue is in dispute, and the nature of the other evidence in the
case
pertaining to this issue; finally, if the military judge determines
that the
evidence is relevant and material, he then performs the MRE 412(b)(3)
balancing
test (whether the probative value of the evidence outweighs the danger
of
unfair prejudice to the victim’s privacy), to determine whether the
evidence is
favorable to the accused’s defense, and also considers the MRE 403
balancing
factors).
(in applying MRE 412, the
judge is not asked to
determine if the proffered evidence is true; rather, the judge serves
as
gatekeeper deciding first whether the evidence is relevant and then
whether it
is otherwise competent, which is to say, admissible under MRE 412).
United States v. Jones, 68 M.J. 465
(military judges must instruct the members on LIOs reasonably raised by
the
evidence).
United
States v. Ferguson, 68 M.J. 431 (a
military judge may not accept a guilty plea if
it is irregular, the accused sets up matter inconsistent with the plea,
or if
it appears that he has entered the plea of guilty improvidently or
through lack
of understanding of its meaning and effect; the term improvident means
heedless, unwary, not circumspect; the term has also been defined as of
or
relating to a judgment arrived at by using misleading information or a
mistaken
assumption; to prevent the acceptance of improvident pleas, the
military judge
is required to make such inquiry of the accused as shall satisfy the
military
judge that there is a factual basis for the plea).
United
States v. Trew, 68 M.J. 364 (in a
judge-alone case, a military judge can
clarify an ambiguity in the findings by making a clear statement on the
record
as to which alleged incident formed the basis of the conviction).
(in this case, the government
charged the
accused with indecent acts on “divers occasions,” introduced evidence
of more
than one occasion, and argued in both opening and closing statements
that at
least two incidents had occurred; when the military judge clarified
that her
guilty findings to the LIO of assault consummated by a battery on a
child under
16 years were for “one occasion,” she should have made a clear
statement on the
record as to which alleged incident formed the basis of the conviction;
the
military judge’s failure to do so resulted in fatally ambiguous
finding).
United
States v. Douglas, 68 M.J. 349 (a military
judge can intervene and protect a
court-martial from the effects of unlawful command influence by taking
proactive, curative steps to remove the taint of unlawful command
influence and
ensure a fair trial; as a last resort, a military judge may consider
dismissal
when necessary to avoid prejudice against the accused; dismissal of
charges is
appropriate when an accused would be prejudiced or no useful purpose
would be
served by continuing the proceedings; however, when an error can be
rendered
harmless, dismissal is not an appropriate remedy; dismissal is a
drastic remedy
and courts must look to see whether alternative remedies are available).
United
States v. Ashby, 68 M.J. 108 (RCM 915(a)
vests military judges with the
discretion to declare a mistrial when manifestly necessary in the
interest of
justice because of circumstances arising during the proceedings which
cast
substantial doubt upon the fairness of the proceedings; however, the
discussion
to the rule advises caution, noting that mistrials are to be used under
urgent
circumstances, and for plain and obvious reasons; because of the
extraordinary
nature of a mistrial, military judges should explore the option of
taking other
remedial action, such as giving curative instructions).
(in this case, the error in
the trial counsel’s comments referencing
appellant’s invocation of his right to remain silent was harmless
beyond a
reasonable doubt, where the military judge took immediate corrective
action
which included giving the members a curative instruction, requiring
trial
counsel to redact her statements, asking each member individually
whether he
could follow the military judge’s instructions, and reminding the
members at
the close of the evidence about appellant’s absolute right to remain
silent;
because the military judge’s actions following the improper comments
adequately
cured the error and rendered it harmless beyond a reasonable doubt, a
mistrial
was not an appropriate remedy).
United
States v. Smead, 68 M.J. 44 (at trial, the
military judge must ensure that
the accused understands the PTA, the parties agree to the terms of the
agreement, the agreement conforms to the requirements of RCM 705, and
the
accused has freely and voluntarily entered into the agreement and
waived
constitutional rights).
(the military judge shall not
accept a plea of
guilty without first determining that the plea is voluntary).
United States v. Nance, 67 M.J. 362
(Article 45(a), UCMJ, requires military judges to reject a plea of
guilty if it
appears that an accused has entered the plea of guilty improvidently;
to
prevent the acceptance of improvident pleas, the military judge has a
duty to
establish, on the record, the factual bases that establish that the
acts or
omissions of the accused constitute the offense or offenses to which he
is
pleading guilty; if the military judge fails to establish that there is
an
adequate basis in law and fact to support the accused’s plea during the
providence inquiry, the plea will be improvident).
United
States v. Collier, 67 M.J. 347 (the military
judge erred in prohibiting
appellant’s defense counsel from cross-examining the main government
witness
about an alleged homosexual romantic relationship between the witness
and
appellant and from introducing extrinsic evidence of such a
relationship; the
military judge’s ruling prevented appellant’s counsel from fully
exploring this
government witness’s bias and motive to misrepresent the truth and
precluded
appellant from presenting her theory of the case; while the military
judge did
permit cross-examination about a close friendship between the two,
appellant
wanted to show that their relationship went beyond friendship, to a
sexual and
romantic relationship that lasted four months, during which time they
lived
together, and that the witness framed appellant for larceny as a result
of
their romantic relationship ending badly; it is intuitively obvious
that there
is a qualitative difference between the breakup of a friendship and a
badly
ended romantic relationship, whether that romantic relationship was
sexual or
not; the romantic nature of a relationship has a special relevance to
motivation such that allowing additional cross-examination in that area
is not
a mere opportunity to hammer the point home to the members; if the
members had
been given evidence of a sexual and romantic relationship between the
witness
and appellant, they might have had a significantly different impression
of the
witness’s credibility; as such, the military judge’s ruling was a
violation of
appellant’s Sixth Amendment right to confront a witness against her).
(trial judges retain wide
latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on
such
cross-examination based on concerns about, among other things,
harassment,
prejudice, confusion of the issues, the witness’s safety, or
interrogation that
is repetitive or only marginally relevant).
(while MRE 611, a rule which
allows a military
judge to control the scope and mode of interrogating witnesses, permits
a
military judge to impose limitations on the length and details of
cross-examination, it does not purport to authorize preemptively
shutting the
door completely on otherwise relevant cross-examination).
United
States v. Riddle, 67 M.J. 335 (if, during the
proceedings, the accused sets
up matter inconsistent with the plea, it is the responsibility of the
military
judge to either resolve the inconsistency or reject the plea).
(if there is reason to believe
that the
accused lacked mental responsibility for any offense charged or lacks
capacity
to stand trial, the military judge and other officers of the court each
has the
independent responsibility to inquire into the accused’s mental
condition).
(the military judge cannot
conduct the
necessary providence inquiry into the accused’s pleas without exploring
the
impact of any potential mental health issues on those pleas).
(should the accused’s
statements or material
in the record indicate a history of mental disease or defect on the
part of the
accused, the military judge must determine whether that information
raises
either a conflict with the plea and thus the possibility of a defense
or only
the mere possibility of conflict; the former requires further inquiry
on the
part of the military judge, the latter does not; this is a contextual
determination by the military judge; however, it is prudent, but not
always
required, to conduct further inquiry when a significant mental health
issue is
raised, regardless of whether a conflict has actually arisen).
(in this case, even though
the record of trial
reflected a diagnosis of bipolar disorder for which appellant was being
treated
at the time of trial and she arrived at the court-martial from a mental health
facility and would return there at its conclusion, the military judge
was not
required to explain or discuss the defense of lack of mental
responsibility
with appellant where he was aware of appellant’s mental health history
and made
sure that her mental condition, current treatment, and competency to
stand
trial did not put the providence of her plea at issue, where appellant
appeared
competent and responsible before the military judge, where she claimed
she was
competent and responsible at the time of the offenses and her counsel
agreed
that she was competent and responsible at that time, where the mental
status
evaluation stated that she was responsible, and where no evidence
existed to
suggest that appellant did not understand the nature and quality or the
wrongfulness of her actions when committing the offenses; the evidence
before
the military judge presented only the mere possibility of conflict with
appellant’s guilty pleas and did not raise a substantial basis in law
or fact
for questioning the providence of those pleas).
United
States v. Rogers, 67 M.J. 162 (a military
judge reviews a magistrate’s
decision to issue a search authorization to determine whether the
magistrate
had a substantial basis for concluding that probable cause existed).
United
States v. Conliffe,
67 M.J. 127 (where
an offense is a lesser included offense of the charged offense, an
accused is
by definition on notice because it is a subset of the greater offense
alleged;
however, where a distinct offense is not inherently a lesser included
offense,
during the guilty plea inquiry, the military judge or the charge sheet
must
make the accused aware of any alternative theory of guilt to which he
is by
implication pleading guilty).
United
States v. Martinez, 67 M.J. 59 (in close cases,
military judges are enjoined
to liberally grant challenges for cause).
United
States v. Yanger, 67 M.J. 56 (where the
possibility of a defense exists
during a guilty plea inquiry, a military judge should secure
satisfactory
disclaimers by the accused of his defense).
United
States v. Ober, 66 M.J. 393 (the
military judge has an independent duty to
determine and deliver appropriate instructions; the military judge must
bear
the primary responsibility for assuring that the jury properly is
instructed on
the elements of the offenses raised by the evidence as well as
potential
defenses and other questions of law).
United
States v. Elfayoumi, 66 M.J. 354 (the duty of
judges is to uphold the law in constitutional context; this includes
the
constitutional and statutory duty to ensure that an accused receives a
fair
trial; that means, among other things, that where a court-martial is
conducted
with members, deliberations will be based on the four corners of the
law and
not the personal views of members; to accomplish this end, the military
judge
has a number of tools, including the authority to oversee and conduct
voir dire
and to instruct members on the law and their deliberations).
(recognizing the human
condition, the
law gives a military judge the added flexibility, and duty, to err on
the side
of caution where there is substantial doubt as to the fairness of
having a
member sit because of that member’s moral or religious views; thus, the
military judge need not impugn the integrity or values of the member in
finding
actual bias, but can in context rely on the implied bias/liberal grant
doctrine
if substantial doubt arises that the member can put his or her views
aside).
United
States v. Upham, 66 M.J. 83 (a military judge
has a sua sponte duty to
instruct the members on lesser included offenses reasonably raised by
the
evidence).
(when statements made by a patient
to a psychiatrist are offered under medical exception to the hearsay
rule, the
military judge must determine that the statements were elicited under
circumstances which made it apparent to the patient that the
psychiatrist
desired truthful information and that only by speaking truthfully would
he
receive the desired benefits from the psychiatric consultation; where
the
mental health diagnosis and treatment is offered in the context of
marital
counseling, declarants may well have mixed motives as well as ulterior
motives
behind their words; so too, the reliability of the statements at issue
may be
clouded by emotional distress).
(in this case, the military judge did not abuse
his discretion in admitting, under the medical exception to the hearsay
rule, statements
that the accused’s wife made to a family advocacy nurse regarding
sexual and
physical abuse she suffered at the hands of the accused, where the
family
advocacy nurse was engaged in mental health diagnosis and referral, the
statements were made with some expectation of receiving medical benefit
or
treatment, and the nurse did not play the role of a law enforcement
agent and
there was no indication of an established relationship between the
nurse and
law enforcement authorities; here, the nurse’s notes taken during the
disclosure of the abuse appear typical to the nursing practice,
suggesting
diagnoses and treatment, the wife’s unnerved demeanor during her
discussion of
the abuse corroborates her motivation for seeking treatment, and the
detailed
discussion of the history and progression of abuse resembles statements
made to
a psychiatrist for diagnosis or treatment through counseling).
United
States v. Miergrimado, 66 M.J. 34 (a military judge
has a sua sponte
duty to instruct the members on lesser included offenses reasonably
raised by
the evidence).
(a military judge can only
instruct
on a lesser included offense where the greater offense requires the
members to
find a disputed factual element which is not required for conviction of
the
lesser violation).
(the military judge did not err by
instructing the members on the lesser included offense of attempted
voluntary
manslaughter over defense objection, where the greater offense of
attempted
premeditated murder required the members to find the disputed factual
element
of premeditation which was not required for the conviction of the
lesser included
offense).
United
States v. Ortiz, 66 M.J. 334 (while the Sixth
Amendment does not dictate a
formalistic approach as to the manner in which a judge delivers
findings
supporting the closing of a trial, a military judge must make some
findings
from which an appellate court can assess whether the decision to close
the
courtroom was within the military judge’s discretion).
(in this case, the military
judge abused her
discretion and denied the accused his right to a public trial by
closing the
courtroom to spectators during the testimony of a minor victim, where
the military
judge failed to correctly apply the legal Waller test (Waller
v.
Georgia, 467 US 39 (1984)) necessary to overcome the presumption in
favor
of a public trial and did not even identify the relevant Waller
factors
to consider or articulate the reason for her decision to clear the
courtroom,
let alone make findings).
(in this case, the record
does not support a
conclusion that the military judge struck the balance of interests
necessary to
overcome the presumption in favor of the right to a public trial, and
the
complete deprivation of the right was erroneous).
United
States v. Inabinette, 66 M.J. 320 (a military
judge abuses his
discretion if he accepts a guilty plea without an adequate factual
basis to
support the plea - an area in which an appellate court affords the
judge
significant deference; additionally, any ruling based on an erroneous
view of
the law also constitutes an abuse of discretion).
(during a guilty plea inquiry,
the
military judge is charged with determining whether there is an adequate
basis
in law and fact to support the plea before accepting it).
United
States v. McIlwain, 66 M.J. 312 (except where
the parties have waived disqualification
of the military judge after full disclosure of the basis for
disqualification,
a military judge must recuse herself in any proceeding in which that
military
judge’s impartiality might reasonably be questioned).
(whether a military judge
should disqualify
himself or herself is viewed objectively, and is assessed not in the
mind of
the military judge himself or herself, but rather in the mind of a
reasonable
man who has knowledge of all the facts; military judges should broadly
construe
possible reasons for disqualification, but also should not recuse
themselves
unnecessarily).
(it is well-settled in
military law that the
military judge is more than a mere referee; the military judge is the
presiding
authority in a court-martial and is responsible for ensuring that a
fair trial
is conducted; the judge has broad discretion in carrying out this
responsibility, including the authority to call and question witnesses,
hold
sessions outside the presence of members, govern the order and manner
of
testimony and argument, control voir dire, rule on the admissibility of
evidence and interlocutory questions, exercise contempt power to
control the
proceedings, and, in a bench trial, adjudge findings and sentence; in
these
roles, the impartiality of a presiding judge is crucial, for the
influence of
the trial judge on the members is necessarily and properly of great
weight, and
members are ever watchful of the words that fall from him; particularly
in a
criminal trial, the judge’s last word is apt to be the decisive word).
(that
a military judge sat on companion cases
does not, without more, mandate recusal).
(a military judge abused her
discretion by
denying a defense motion to recuse herself in a members trial after
declaring
that her participation in companion cases would suggest to an impartial
person
looking in that she could not be impartial in the case and refusing to
sit as
trier of fact).
(if a judge is disqualified to
sit as judge
alone, that judge is also disqualified to sit with members).
United
States v. Maynard, 66 M.J. 242 (the military
judge did not commit plain error
in failing to sua sponte rule that testimony on sentencing regarding
the
alleged anti-war and anti-American material left in appellant’s room
after he
went AWOL was improper evidence in aggravation of his AWOL offense;
even if the
judge erred in admitting this testimony, appellant failed to establish
that the
admission was plainly and obviously erroneous; under the circumstances
of this
case, the testimony that appellant had left behind only a few personal
items
when he departed for a two-week leave did not so obviously lack a
direct
relationship to the AWOL offense that the military judge was obliged to
take
sua sponte action; and even though the testimony described some of the
items as
anti-American propaganda, the testimony also indicated that appellant
left them
displayed in his barracks room; this testimony could be read to suggest
that
appellant intentionally left the articles in question as “a display”
for those
who would be investigating his disappearance).
United
States v. Dacus, 66 M.J. 235 (if an accused
sets up a matter inconsistent
with his plea at any time during a proceeding on the plea, the military
judge
must either resolve the apparent inconsistency or reject the plea).
United
States v. Greatting, 66 M.J. 226 (under RCM
902(a), a military
judge shall disqualify himself or herself in any proceeding in which
that
military judge’s impartiality might reasonably be questioned).
(when assigned to the judiciary, the military judge frequently will
find
himself or herself in close and continuing contact with judge advocates
outside
the courtroom; in light of these and other circumstances, members of
the
military judiciary must be particularly sensitive to applicable
standards of
judicial conduct).
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).