2008 (Transition)
United
States v. Allende, 66 M.J. 142 (Article 54(a)
requires each general
court-martial to keep a record of the proceedings; under the direction
of the
military judge, the trial counsel makes arrangements for preparation of
the
record; the trial counsel examines the record and makes any necessary
corrections; during this process, the trial counsel permits the defense
counsel
to examine the record except when unreasonable delay will result).
(a complete record of the proceedings,
including a verbatim written transcript, must be prepared for each
general
court-martial in which the sentence includes a discharge; substantial
omissions
from the record create a presumption of prejudice that may be rebutted
by the
government).
2001
United
States v. Kulathungam, 54 MJ 386 (it is
inappropriate for
a trial counsel to add to the record of trial things that were not said
or done
at the court-martial; however, such misconduct does not require
reversal when
there is no impact on the pleas or sentence).
(trial counsel, responsible for preparation of the record of trial,
who
discovers that the military judge did not announce findings based upon
appellant’s guilty pleas, should call the matter to the attention of
the
military judge or seek advice from the military judge or a more
experienced
attorney, rather than unilaterally inserting findings into the record).
(although trial counsel erroneously inserted findings of guilty into
the
record of trial prior to authentication, even though no findings were
announced
based on appellant’s guilty pleas, this error did not substantially
prejudice
appellant).
2000
United
States v. Stoffer, 53 MJ 26 (although record of
trial was
missing the charge sheet, convening order, post-trial recommendation,
three
defense exhibits, and three appellate exhibits, appellant was not
prejudiced as
to the approved findings because: (1) the record establishes
proper
preferral and referral of the charge; (2) the record showed service of
the
charge upon appellant after referral; (3) after the appellant’s guilty
plea,
the military judge conducted a thorough providence inquiry; and (4) the
pretrial agreement was admitted, and a meticulous inquiry by the
military judge
ensured appellant understood its ramifications).
(where record of trial was missing the charge sheet, convening
order,
post-trial recommendation, three defense exhibits, and three appellate
exhibits, and where the government failed to show that these omissions
were
non-prejudicial or harmless error as to sentence, the appellant could
not receive
a sentence that included a bad-conduct discharge; these were
substantial
omissions, and the Court would not presume what was in the missing
defense
sentencing exhibits which were not further identified after they were
introduced without objection).
United
States v. Henry, 53 MJ 108 (a substantial omission
renders
a record of trial incomplete and raises a presumption of prejudice that
the
government must rebut; insubstantial omissions from a record of trial
do not
raise a presumption of prejudice or affect the record’s
characterization as a
complete one).