United
States v. Jones, 69 M.J. 294 (it is better
practice for the substance of an
RCM 802 conference to be placed on the record at the next Article
39(a),
UCMJ).
United
States v. Bartlett, 66 M.J. 426 (in Article 36,
UCMJ, 10 USC § 836, Congress
has delegated to the President the authority to prescribe by regulation
procedures for the trial of courts-martial, insofar as such regulations
are not
inconsistent with the UCMJ; such regulations are also to be uniform
insofar as
practicable).
(the right to a public trial
is not absolute;
however, there is a strong presumption in favor of a public trial,
grounded in
the belief that it is critical to affording an accused a fair trial, as
judges,
lawyers, witnesses, and jurors will perform their respective functions
more
responsibly in an open court than in secret proceedings; this
presumption is
overcome only where the balance of interests is struck with special
care).
(recognizing the importance of
the right to a
public trial, not only to an accused, but to the public and the
integrity of
the criminal process, prior to closing a trial, it is required that:
(1) the
party seeking closure must advance an overriding interest that is
likely to be
prejudiced; (2) the closure must be narrowly tailored to protect that
interest;
(3) the trial court must consider reasonable alternatives to closure;
and (4)
the trial court must make adequate findings supporting the closure to
aid in
review).
(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).
(where only some spectators
are required to
leave the courtroom, and some spectators can or do remain, the
Constitution’s
public trial guarantee, which ensures that participants perform their
duties
more responsibly and discourages perjury, is only moderately burdened
as
certain spectators remain and are able to subject the proceedings to
some
degree of public scrutiny; consequently, several circuits have found no
erroneous deprivation of the right to a public trial despite limited
findings by
the trial court or the absence of findings in the context of a partial
closure).
(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).
(trial closure that occurred
when the military
judge completely closed the courtroom to spectators and locked the door
during
the substantive testimony of the key government witness, which was
essential
to, and comprised the bulk of, the government’s case, was a complete
closure
for purposes of the Sixth Amendment, albeit less than complete in a
temporal
sense).
(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).
(there was no reason to question appellant’s arraignment based on the fact that the government was unprepared to present its case on the merits immediately following arraignment; arraignment serves to protect an accused’s rights because judicial authority over an accused’s case is enhanced while a convening authority’s ability to affect the case decreases, and the accused remains free to make a motion for a speedy trial).
2011 (September Term)
United States v. St. Blanc, 70 M.J. 424 (within the military justice system, an accused has a right to trial before a panel of military members; an accused also has a choice: prior to trial, an accused has the right to elect to be tried by members or by a military judge alone).
(in the military context, RCM 903 protects the forum selection right codified in Article 16, UCMJ, by ensuring that an accused’s waiver of the right to trial by members is knowing and voluntary; to this end, the request for trial by military judge alone must be made in a signed writing by the accused or made orally on the record; if the accused requests trial by military judge alone, the military judge must further 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).
(appellant should be correctly informed by his defense counsel of the maximum punishment he faces before making fundamental decisions in his case).
(appellant’s decision to seek trial by military judge alone was knowing and voluntary even though his defense counsel misadvised him of the maximum punishment that he faced; the right to be properly informed of the sentence maximum is not encompassed within the right to elect the forum for trial, Article 16, UCMJ; that right is protected and implemented by RCM 903, which requires that the election be knowing and voluntary; nothing in the MCM or UCMJ suggests any reason to part ways with the federal courts, which treat erroneous advice as to sentence in a contested case as potential ineffective assistance of counsel and do not analyze it as potential involuntary waiver of a forum selection right; nor is there any textual or practical reason to do so; while there are myriad reasons an accused may choose one forum over another, RCM 903 does not require that a military judge inquire into any non-enumerated factors or collateral matters that may have influenced the accused’s election; moreover, the difference between an accused’s potential maximum punishment prior to arraignment, when forum selection is made, and the actual maximum sentence after findings - impacted by dismissal of a charge or specification, merger of specifications, findings of guilty only to a lesser included offense, or findings of not guilty - can be significant; thus, it would create an insoluble conundrum if failure of pretrial sentencing advice in this regard in a contested case were assessed under any standard other than ineffective assistance of counsel; in this case, under the terms of RCM 903, appellant made a knowing and voluntary election of trial by military judge alone).
1999
United
States v. Gray, 51 MJ 1 (appellant knowingly and intelligently
elected trial by enlisted members where: military judge twice
explained rights to appellant; appellant twice acknowledged his
understanding; and appellant orally and in writing requested enlisted
members – military judge’s decision to give defense counsel an
opportunity to clear up any confusion on the part of appellant was not
error).
Oaths:
2006
United States v. Washington, 63 M.J. 418 (MRE 603
provides that before testifying, every witness shall be required to
declare that the witness will testify truthfully, by oath or
affirmation administered in a form calculated to awaken the witness’s
conscience and impress the witness’s mind with the duty to do so; MRE
603 also requires that a witness swear or affirm that he will tell the
truth, but it establishes no specific colloquy to be used in carrying
out this requirement; any process that is sufficient to awaken the
witness’s conscience is satisfactory).
(MRE 603 is designed to
afford
the flexibility required in dealing with children, and affirmation is
simply a solemn undertaking to tell the truth; MRE 603 requires no
special verbal formula, but instead requires that the oath be
meaningful to the witness, including a child witness, and impress upon
the witness the duty to tell the truth).
(the law is clear, both
in the
text of MRE 603 and its analysis, and in federal circuit case law, that
a particular formula is not required in administering an oath or
affirmation, although adherence to the benchbook formula will minimize
dispute; this is particularly true in the case of children, where oaths
and affirmations may be specially tailored to impress on the particular
child the importance of telling the truth; this can be accomplished, as
it has been accomplished for many years, without imparting to the child
the perils of perjury).
(the failure to
administer
the oath before a child witness’s testimony was error, and the error
was obvious; the plain text of MRE 603 required the child witness, by
oath or affirmation, to declare that she would testify truthfully
before testifying; the initial colloquy between the child witness and
trial counsel fell short of this requirement; however, appellant’s
plain error claim fails because he cannot show he was materially
prejudiced by the error where the trial counsel asked if the child
witness knew the difference between the truth and a lie, and she
indicated that she understood, where at the end of her testimony, the
child witness stated that she had told the whole truth and nothing but
the truth, where she then swore that everything she said had been the
truth, and where after the child witness was recalled, she also stated
that she had told the truth the previous day; although the colloquy
between the trial counsel and the child witness was not a formal oath
or affirmation, the witness demonstrated that she understood her duty
to tell the truth; in short, consistent with the purpose of MRE 603,
but not its temporal requirement, the record of trial reveals that the
child witness was alert to the necessity of telling the truth both at
the beginning of her testimony and at the outset of the second day of
her testimony).
2000
United
States v. Matthews,
53 MJ 465 (the scope of rebuttal is defined by the
evidence
introduced by the other party; a broad assertion by an accused on
direct
examination that he or she has never engaged in a certain type of
misconduct may
open the door to impeachment by extrinsic evidence of the misconduct).
2010 (September Term)
United
States v. Gooch, 69 M.J. 353 (voir dire is
the principal legal instrument
used to ensure that those members who qualify for service as panel
members can
do so free from conflict and bias).
(voir dire as provided for in
Article 41, UCMJ,
and regulated by the President under RCM 912, is the codal method for
identifying and screening members based on potential bias, not
categorical
exclusion; voir dire provides an accused (and the government) with the
necessary safeguards in the form of unlimited challenges for cause
based on
actual or implied bias and the liberal grant mandate on the record and
supervised by the military judge).
(the mechanism for addressing
bias, the
potential for bias, or the appearance of bias among panel members, is
through
voir dire and the use of causal and peremptory challenges).
2008 (Transition)
United
States v. Bragg, 66 M.J. 325 (the purpose of
voir dire and challenges is,
in part, to ferret out facts, to make conclusions about the members’
sincerity,
and to adjudicate the members’ ability to sit as part of a fair and
impartial
panel).
United
States v. Nieto, 66 M.J. 146 (voir dire
provides an opportunity to explore
whether a member possesses partiality or otherwise is subject to
challenge, and
the military judge has broad discretion in the conduct of voir dire).
(as a general matter,
hypothetical questions
provide a permissible means of exploring potential grounds for
challenge).
(a number of courts have held
that certain
hypothetical questions during voir dire are impermissible if they seek
to
obtain a commitment from jurors to agree to decide the case in a
particular way
upon a hypothetical set of facts; a number of other courts have adopted
a
broader prohibition, precluding questions that ask jurors to commit
themselves
to resolving a particular aspect of the case in a specific way based
upon a
hypothetical set of facts; however, there are no decisions from the
federal
civilian courts that would indicate a generally applicable standard for
considering hypothetical voir dire questions in the trial of criminal
cases in
federal district courts).
2007
(complete candor is expected
from court members during voir dire; anything less undermines the
purpose of the member selection process at trial and, in turn,
potentially deprives an accused of an impartial determination of guilt
and a fair trial).
(if a court member learns of
information during the trial which makes an earlier response to a voir
dire question inaccurate, the member should so advise the court; the
duty of candor does not stop at the end of voir dire but is an
obligation that continues through the duration of the trial; it makes
no difference whether the member knew during voir dire that his
response to a question was incorrect or whether he later realized, or
reasonably should have realized, that his initial response was
incorrect -- the duty to honestly inform the court is the same).
(a panel member is not the
judge of his own qualifications; the duty to disclose cannot be
dependent upon the court member’s own evaluation of either the
importance of the information or his ability to sit in judgment; just
as honest disclosure must be made in response to direct questions on
voir dire, honest disclosures must be made throughout the trial
regardless of the members’ own belief as to their ability to sit as
court members).
(there can be no doubt that a
question as to a potential member’s knowledge of a witness is material
to an accused’s right to expose potential biases in order to ensure an
impartial jury).
2005
United
States v. Sonego, 61 M.J. 1 (voir dire is critical to the fairness
of a
court-martial; a defendant’s right to a fair trial is undermined if
panel
members fail to answer material questions honestly during voir
dire).
(an inelastic predisposition toward a particular punishment is a valid
basis
for a challenge for cause).
(a colorable claim of juror dishonesty was made in this case where an
officer
of the court declared under penalty of perjury that a panel member
provided a
contradictory voir dire response on a critical issue less than one
month after
appellant’s trial).
United
States v. Richardson, 61 M.J. 113 (the procedural vehicle for
testing for
member bias is voir dire; voir dire examination serves to protect the
right to
a fair trial by exposing possible biases, both known and unknown, on
the part
of potential jurors; generally, the procedures for voir dire are within
the
discretion of the trial judge; RCM 912(d) provides that the military
judge may
permit the parties to conduct the examination of members or may
personally
conduct the examination; in the latter event, the military judge shall
permit
the parties to supplement the examination by such further inquiry as
the
military judge deems proper or the military judge shall submit to the
members
such additional questions by the parties as the military judge deems
proper).
(when it occurs to counsel
conducting the
voir dire that further inquiry was omitted on a critical issue, judges
should
be patient and allow that inquiry to be conducted).
(in a close-knit system like
the military
justice system, situations will arise and may at times be unavoidable
where
members might have had previous or current official contact with the
trial
participants; where such situations are identified, military judges
should not
hesitate to test these relationships for actual and implied bias; and a
factual
record should be created that will demonstrate to an objective observer
that
notwithstanding the relationships at issue, the accused received a fair
trial;
member voir dire is the mechanism for doing so).
(in this case, the prior
professional
contacts between trial counsel and three of the six seated members at
appellant’s court-martial, including conversations related to criminal
law
matters, warranted further inquiry in light of defense counsel’s
challenges for
implied bias and his request to conduct further voir dire; moreover,
counsel in
this case sought to ask additional questions while voir dire was still
ongoing;
accordingly, this Court concludes that the military judge abused his
discretion
by failing to apply the correct legal standard for implied bias to the
challenges of these members; there was a further abuse of discretion in
the
denial of counsel’s request to reopen voir dire in a case raising
implied bias
considerations).
2002
United
States v. Humpherys, 57 MJ 83 (impartial
court-members are
a sine qua non for a fair court-martial, and voir
dire
is an important method for identifying a member whose impartiality
might be
questioned).
(When a panel member fails to disclose information during voir
dire,
the defendant must make two showings in order to receive a new trial:
(1) that
a panel member failed to answer honestly a material question on voir
dire; and
(2) that a correct response would have provided a valid basis for a
challenge
for cause).
(an evidentiary hearing is the appropriate forum in which to develop
the
full circumstances surrounding a panel member’s failure to disclose
information
during voir dire; the hearing enables the military judge to
investigate
and resolve allegations, by interviewing the challenged panel members,
while
the details of trial are still fresh in the minds of all participants,
so that
the judge can assess first-hand the demeanor of the panel members as
they
respond to questioning from the bench and counsel).
2001
United
States v. Dewrell, 55 MJ 131 (claim that military
judge
erred by refusing to allow the defense to conduct any group voir
dire is
reviewed for abuse of discretion).
(neither the UCMJ nor the Manual for Courts-Martial gives the
defense the
right to individually question the members).
(military judge did not abuse his discretion in refusing to permit
defense
counsel to question members where the questions posed by the military
judge
properly tested for a fair and impartial panel, allowed counsel to
intelligently exercise challenges, and were adequate to cover the
statutory
qualification of the members).
United
States v. Lambert, 55 MJ 293 (neither the UCMJ nor
the
Manual gives the defense the right to individually question the
members, and
this includes questioning the members concerning their conduct during
the
proceedings and deliberations).
1999
United
States v. Belflower, 50 MJ 306 (1999) (military judge has
discretion to
allow individual or group voir dire, and party seeking
individual voir
dire must show that it is necessary because certain questions could
not be
covered in group questioning).
(questions which appear to have nothing inherent in them which would
be
likely to produce a response which would poison the remainder of the
panel can
be asked in group voir dire; but, even if there is a risk to
the
remainder of the panel, it is within the discretion of the military
judge to
take that risk).
2011 (September Term)
United States v. Easton, 71 M.J. 168 (under RCM 604(b), if the convening authority withdraws charges for an improper reason, they cannot be re-referred for trial; charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity).
1999(withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial after military judge’s ruling denying government motion for a continuance did not constitute illegal interference with the exercise of the judicial function because the convening authority’s actions did not violate any procedural rules of the Manual for Courts-Martial and thus did not constitute “illegal” interference with the judicial function).
(withdrawal and re-referral of charges was proper under RCM 604(b) when done to further the legitimate command objective of accommodating a victim’s schedule and avoid the issuance of a subpoena).
(appellant was not substantially prejudiced by withdrawal and re-referral of charges where: (1) re-referral was to the same level of court-martial; (2) trial was before the same military judge as first trial; (3) appellant lost no benefits from a favorable trial ruling as denial of a continuance created no legally cognizable right to a trial without a prosecution witness; (4) appellant was not in pretrial confinement; and (5) appellant made no pretrial motion at second court-martial alleging prejudicial trial delay).