TRIAL STAGES: Initial Review: Preparation of Record of Trial
2013 (September Term)
United States v. Davenport, 73 M.J. 373 (the requirement that a record of trial be complete and substantially verbatim in order to uphold the validity of a verbatim record sentence is one of jurisdictional proportion that cannot be waived).
(a nonverbatim transcript and an incomplete record are separate and distinct errors under the RCM).
(a verbatim transcript includes all proceedings including sidebar conferences, arguments of counsel, and rulings and instructions by the military judge; and a verbatim transcript of all sessions is required when (i) any part of the sentence adjudged exceeds six months confinement, forfeiture of pay greater than two-thirds pay per month, or any forfeiture of pay for more than six months or other punishments that may be adjudged by a special court-martial, or (ii) a bad-conduct discharge has been adjudged).
(a verbatim transcript was required in this case because the military judge sentenced appellant to two years of confinement and a bad-conduct discharge).
(by definition, if there is not a verbatim transcript, there is also no complete record; however, while in the case of most incomplete records, prophylactic measures are not prescribed, and the missing material or remedy for same are tested for prejudice, where the record is incomplete because the transcript is not verbatim, the procedures set forth in RCM 1103(f) control).
(in assessing either whether a record is complete or whether a transcript is verbatim, the threshold question is whether the omitted material was substantial, either qualitatively or quantitatively).
(despite the dictionary definition of the term verbatim, transcripts need not be word for word, but must be substantially verbatim; a transcript may be deemed substantially verbatim though it has certain omissions; omissions are qualitatively substantial if the substance of the omitted material related directly to the sufficiency of the government’s evidence on the merits, and the testimony could not ordinarily have been recalled with any degree of fidelity; omissions are quantitatively substantial unless the totality of omissions becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness).
(in this case, the complete omission of testimony of a government witness on the merits from the trial transcript was a substantial omission that rendered the transcript nonverbatim, where the content of the testimony was equivocal even after attempts to reconstruct it at a DuBay hearing; the omission was substantial both quantitatively, because the entire testimony was omitted, and qualitatively, because the substance of the omitted testimony presumably related directly to the government’s evidence on the merits and could not be recalled with fidelity).
(when a verbatim transcript cannot be prepared, the plain language of RCM 1103(f) provides that there are only two remedial options available to the convening authority; under that rule, the convening authority may (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved, or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial).
(where a record of trial is nonverbatim, the convening authority is limited to the remedies listed in RCM 1103(f); no authority exists for applying the remedy for an incomplete record to a nonverbatim transcript; accordingly, in this case, where the transcript remained nonverbatim after the DuBay hearing, RCM 1103(f) limits the remedies available to a rehearing or a modified sentence).
United States v. Flesher, 73 M.J. 303 (by RCM 801(f), all sessions involving rulings made by the military judge shall be made a part of the record).
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).
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).
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).(omission of portions of sexually explicit literature from which appellant could have ordered pornographic videotapes was insubstantial where those exhibits which were in the record amply demonstrated that sexually explicit videotapes were advertised along with order forms to facilitate ordering the material).