TRIAL STAGES: Initial Review: Preparation of Record of Trial

2013 (September Term)

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). 

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). 


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).

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