2010 (September Term)
United States v. Hull, 70 M.J. 145 (requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence).
United States v. Webb, 66 M.J. 89 (Article 39(a), UCMJ, authorizes military judges to take such action after trial and before authenticating the record as may be required in the interest of justice; before authentication of the record, the military judge has the authority to conduct a post-trial session, set aside findings of guilty and the sentence, and order a new trial for a discovery violation).
(a military judge does not have authority under Article 73, UCMJ, to order a new trial).
(prior to authentication, a military judge has authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate).
(a military judge did not abuse her discretion in ordering a new trial in a drug use case where the government failed to disclose impeachment evidence concerning the witness who was assigned as the observer of the accused’s provision of a urine sample for drug testing; evidence that the observer, a link in the chain of custody, had received nonjudicial punishment under Article 15 for dishonesty may have raised serious questions in the minds of the factfinder concerning the identity of the urine tested and whether it was unaltered when it was tested; this point may have borne extra weight with the factfinder where the government expressly prohibited having such persons serve as observers; alone or in conjunction with the accused’s denial of use, this evidence may have raised reasonable doubt in the factfinders’ minds as to the accused’s guilt; furthermore, the possession of this evidence may have altered the accused’s trial strategy -- he may not have testified; under all of these circumstances, the military judge cannot be faulted for concluding that it was probable that had the prosecution provided the nonjudicial punishment to the defense, it would have produced a substantially more favorable result for the accused -- in other words, it undermined confidence in the outcome of the trial; accordingly, in this case, the government’s failure to disclose exculpatory evidence affecting a witness’s credibility that the accused specifically asked the government to disclose was not harmless beyond a reasonable doubt).
United States v. Albaaj, 65 M.J. 167 (in determining whether a new trial is warranted when there is an allegation that a juror failed to disclose information during voir dire, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause).
(when a panel member failed to disclose that he knew the accused’s brother, who was a defense witness on both the merits and sentencing, this failure to disclose constituted juror misconduct and warranted a new trial; by failing to correct the misinformation he had given earlier during voir dire, the member violated his duty of candor; as a result of the panel member’s nondisclosure, appellant’s defense counsel was unaware of the relationship between the panel member and the accused’s brother during the trial when he could have made further inquiry into the nature of the relationship; as a result of that inquiry, he could have moved for a mistrial or asked that the panel member be removed from the panel prior to deliberations, either for cause or on the basis that he would have exercised his peremptory challenge against the member had he been aware of the relationship; therefore, the member’s failure to disclose information was material to the conduct of a fair and impartial trial; in addition, the evidence from the DuBay hearing reflected that the panel member had prior work-related contact with the accused’s brother and had made critical statements about him and questioned his honesty; also in dealing with a witness who is a brother of the accused, there is a risk that the member might impart his feelings about the witness to the accused; when viewed objectively, the circumstances of the relationship combined with the member’s failure to disclose it to the military judge injure the perception of fairness in the military justice system; most members in the same position would be prejudiced or biased; therefore, a valid basis for an implied bias challenge of the member was established; accordingly, the two-prong new trial test has been satisfied).
United States v. Meghdadi, 60 M.J. 438 (we have long recognized that petitions for a new trial are generally disfavored and that granting a petition for a new trial in the military rests within the sound discretion of the authority considering that petition; relief is granted only if a manifest injustice would result absent a new trial based on proffered newly discovered evidence).
(although we have not directly addressed the standard to be applied in examining a military judge’s denial of a request for a post-trial Article 39(a) session, we have held that when an appellant requests the convening authority to order a post-trial Article 39(a) session, it is a matter for the convening authority’s sound discretion whether to grant the request, and that we review a military judge’s ruling on a petition for a new trial for abuse of that discretion).
(in denying a petition for a new trial, a military judge abuses his discretion if the findings of fact upon which he predicates his ruling are not supported by evidence of record; if incorrect legal principles were used by him in deciding this motion; or if his application of the correct legal principles to the facts of a particular case is clearly unreasonable; while this standard is not facially applicable to the military judge’s denial of appellant’s request for an Article 39(a) session, the fact that the request was made in the context of a motion for new trial compels our consideration of this analytical framework in assessing the military judge’s factual and legal conclusions).
(in denying appellant’s motion for a post-trial Article 39(a) session to consider whether a mistrial or new trial should be granted, the military judge misapprehended the purpose of the Article 39(a) session, made factual findings that were not supported by the record, applied an erroneous legal standard, misperceived the evidentiary value of an audiotape, made no record of any weighing of the new evidence against the evidence at trial, either on the merits or in sentencing, and failed adequately to address appellant’s claim that fraud on the court allegedly perpetrated by a government witness had a substantial contributing effect on the sentence adjudged; further, on an issue related entirely to witness credibility, the military judge declined the opportunity personally to hear the testimony of witnesses and, in the process, denied counsel the opportunity to develop that testimony in an adversarial forum; viewing these circumstances in the aggregate, we conclude that the military judge’s reasons and ruling were clearly untenable and that they constitute a prejudicial abuse of discretion).
United States v. Sonego, 61 M.J. 1 (to obtain a new trial due to an incorrect voir dire response, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause).
(where a party asserts juror nondisclosure during voir dire as a ground for a new trial, the normal procedure is to remand the issue to the trial court for resolution; an evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding each part of the new trial test).
(although an evidentiary hearing is the usual procedure for resolving claims of juror dishonesty, the measure of proof required to trigger such an evidentiary hearing is a colorable claim of juror bias; the “colorable claim” test eliminates frivolous claims but keeps the door open for claims that may prove valid upon further examination).
(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. Johnson, 61 M.J. 195 (Art. 73, UCMJ, allows petitions for new trials on the grounds of newly discovered evidence or fraud on the court).
(requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored; relief is granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proferred newly discovered evidence).
(when presented with a petition for new trial, the reviewing court must make a credibility determination, insofar as it must determine whether the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused; the reviewing court does not determine whether the proferred evidence is true; nor does it determine the historical facts; it merely decides if the evidence is sufficiently believable to make a more favorable result probable).
(when petitions for a new trial are submitted, this Court has the prerogative of weighing testimony at trial against the post-trial evidence to determine which is credible; consistent with federal civilian practice, this Court may review the evidence both in terms of credibility as well as of materiality; in determining whether evidence is material, this Court looks at the importance of the issue for which the evidence was offered in relation to the other issues in the case; the extent to which this issue is in dispute; and the nature of other evidence in the case pertaining to this issue).
(the denial of the accused’s request for a new trial based on newly discovered evidence was not an abuse of discretion where the evidence did not offer some new version of the facts presented at trial and where additional impeachment material and potential perjury by witnesses would probably not have produced a substantially more favorable result for the accused).
United States v. Harris, 61 M.J. 391 (petitions for new trials are disfavored in the law; relief is granted only to avoid a manifest injustice).
(RCM 1210, the rule on petitions for new trial, expressly precludes its application to guilty pleas).
United States v. Cuento, 60 MJ 106 (petitions for new trial based on a witness’s recantation are not viewed favorably in the law; they should not be granted unless the court is reasonably well satisfied that the testimony given by a material witness is false; recantations of trial testimony are viewed by federal courts with extreme suspicion).
alleged perjurer is the prosecutrix herself, we remain disinclined to
appellant with a mechanical application of the rigorous new trial
under the unique circumstances of this case, including the lack of any
corroborating physical evidence, that appellant, both before and during
recanted his prior
United States v. Humpherys, 57 MJ 83 (petitions for a new trial are generally disfavored, and a decision on a petition for a new trial rests within the sound discretion of the authority considering that petition).
(a military judge’s ruling on a petition for a new trial for is reviewed for abuse of discretion).
(the military judge did not abuse his discretion in ruling that appellant was not entitled to a new trial for panel members’ failure to disclose information about a superior/subordinate relationship where a full evidentiary hearing on the record made clear that the relationship between superior and rated subordinate was entirely professional, did not involve any negative aspects between them, and would not hamper subordinate's independent thinking and fulfillment of his responsibility as a panel member).
(military judge did not abuse his discretion in ruling that appellant was not entitled to a new trial based upon panel member’s failure to disclose information about a superior/subordinate relationship during voir dire where accurate responses by these members would not have provided a valid basis for a challenge for cause against either or both).