MILITARY JUSTICE PERSONNEL: Military Judge: Duties and Responsibilities

2023 (October Term)

United States v. Wilson, 84 M.J. 383 (MRE 404(b)'s uncharged misconduct notice requirement does not require a military judge to rule on the government's motion before trial; the court may reserve its ruling on the admissibility of the evidence until trial, when a proper foundation could possibly be laid by the government).

(if a military judge determines that the proffered evidence is properly admissible under MRE 404(b), he or she then must conduct a MRE 403 balancing test and exclude this otherwise admissible evidence if its probative value is substantially outweighed by a danger of unfair prejudice; this balancing test serves as a means of guarding against the general risk that members will treat evidence of uncharged acts as character evidence and use it to infer that an accused has acted in character, and thus convict).

(when conducting an MRE 404(b) analysis, a military judge must always be on guard against the wolf of propensity that comes dressed in the sheep's clothing of motive).

United States v. Keago, 84 M.J. 367 (military judges must err on the side of granting defense challenges for cause; this liberal grant mandate recognizes that the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, and is intended to address certain unique elements in the military justice system including limited peremptory rights and the manner of appointment of court-martial members that presents perils that are not encountered elsewhere; under the liberal grant mandate, if the military judge finds an implied bias challenge to be a close question, the challenge should be granted).

(there is no basis for application of the liberal grant mandate to a government's challenge for cause).

(while it is not required for a military judge to place his or her implied bias analysis with respect to challenges for cause on the record, doing so is highly favored and warrants increased deference from appellate courts; when a military judge fails to conduct an implied bias analysis, the standard of review shifts toward de novo).

(there is a sliding standard of appellate review for implied bias challenges that falls somewhere on a spectrum between de novo and abuse of discretion based on the specific facts of the case; a military judge who cites the correct law and explains his implied bias reasoning on the record will receive greater deference (closer to the abuse of discretion standard), while a military judge who fails to do so will receive less deference (closer to the de novo standard); accordingly, the more reasoning military judges provide, the more deference they will receive).

(in close cases with respect to challenges for cause, military judges are enjoined to liberally grant challenges for cause; in fact, military judges are mandated to err on the side of granting a challenge, and this means that if after weighing the arguments for the implied bias challenge the military judge finds it a close question, the challenge should be granted; military judges retain their discretion to determine whether a challenge for cause constitutes a close case of bias; however, when a case is close, the liberal grant mandate prohibits military judges from denying the challenge).

(in this case, with respect to each challenged member for actual bias, the military judge correctly cited the relevant actual bias law, made express findings of fact that were not clearly erroneous, recognized the liberal grant mandate, and placed his reasoning on the record; considering the great deference due to military judges with respect to their actual bias determinations, the military judge did not abuse his discretion when he denied appellant's challenges for actual bias).

(in this case, the military judge provided no explanations for his denial of appellant's two implied bias challenges for cause; under a less deferential standard of review, the two challenged members presented a close case of implied bias where (1) the first member appeared to believe that the government had established some portion of its case against appellant simply by bringing the charges to a courts-martial and where he appeared to be confused about appellant's presumption of innocence and right to remain silent, and (2) the second member suggested that she did not believe that mistake of fact was a viable defense to the charged sexual assault offense; because military judges are required to apply the liberal grant mandate and excuse members in close cases, the military judge erred by failing to do so).

United States v. Hasan, 84 M.J. 181 (under military law, a military judge does not have a duty to inquire into the reasons behind an accused's dissatisfaction with counsel as part of the inquiry to determine if the accused's waiver of counsel was knowing, intelligent, and voluntary).

(in this case, the military judge was not required to appoint substitute counsel because appellant's waiver of counsel was not exclusively tied to his disapproval of his trial defense counsel's religious fervor defense and because he disclaimed wanting any counsel).

(notwithstanding the absence of a challenge or waiver of a challenge by the parties, a military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; under this rule, a military judge has the discretionary authority to sua sponte excuse a member but has no duty to do so).

2022 (October Term)

United States v. Gilmet, 83 M.J. 398 (RCM 801(a)(3) grants military judges the authority to exercise reasonable control over the proceedings; this authority includes control over when, and in what order, motions will be litigated). 

United States v. Kim, 83 M.J. 235 (during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it). 

(in a guilty plea situation, the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior). 

(the fundamental requirement of plea inquiry involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct). 

United States v. Shields, 83 M.J. 226 (when the Fourth Amendment and technology intersect, military judges may need to hear from, and rely on, expert witnesses). 

(a military judge, as the trier of fact, has the discretion, indeed, responsibility, to credit one expert over another). 

United States v. Vargas, 83 M.J. 150 (although RCM 701(g)(3) does not expressly sanction dismissal with prejudice as a remedy for discovery violations, it does authorize military judges to impose a remedy that is just under the circumstances).

2021 (October Term)

United States v. Rudometkin, 82 M.J. 396 (RCM 902(a) requires a military judge to disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned).  

(RCM 915(a) provides that a military judge may declare a mistrial when manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings). 

United States v. Tate, 82 M.J. 291 (when confronted with a substantial omission in the transcript, the military judge may employ three remedies for curing substantial omissions and creating a verbatim transcript prior to the conclusion of the court-martial: declaring a mistrial, reconstructing the record, and starting anew).

(when confronted with a substantial omission in the transcript, the military judge may employ three remedies for curing substantial omissions and creating a verbatim transcript prior to the conclusion of the court-martial: declaring a mistrial, reconstructing the record, and starting anew).

(the first method of remedying the loss of a verbatim recording is for the military judge to declare a mistrial; since 2019, RCM 1112(d)(3)(D) has authorized a military judge to cure a defective or incomplete record of trial by declaring a mistrial as to the affected specifications if the error was raised by motion or on appeal by the defense). 

(a second common remedy for lost recordings is for the military judge to reconstruct the record; a reconstruction occurs when the necessary actors—the military judge, with the assistance of the parties, and relevant witnesses—act promptly and thoroughly to recreate the lost testimony through their collective memories and notes; the President expressly authorized military judges to reconstruct incomplete or defective records of trial in RCM 1112(d)(3)(A)).   

(the third remedy military judges have to cure nonverbatim transcripts is starting anew; when this remedy is employed, the military judge expunges the lost proceedings and restarts the unrecorded session from scratch; this remedy is frequently paired with an express instruction to the panel to disregard the unrecorded testimony or a statement from the military judge saying she has disregarded the unrecorded proceedings to start anew; what distinguishes the remedy of starting anew from the remedy of reconstruction is that when starting anew, the original lost proceeding is expunged; it therefore would not matter whether the second proceeding captures the substance of the lost recording or whether the witnesses repeated the same testimony; the original proceeding becomes not just irrelevant, but legally null and void; the Discussion to RCM 1112(d)(3) provides that if either party objects to the summary or reconstruction, the trial should proceed anew, and the proceedings repeated from the point where the interruption began (but as to this remedy in this case, CAAF declined to decide whether starting anew, at least as it was invoked during the sentencing phase, was authorized under RCM 915(a), or more generally under the military judge’s inherent power to control court‑martial proceedings; rather, it assumed—without deciding—that the judicially crafted remedy of starting anew was a permissible option to cure the lost recording in this case)).

United States v. Hiser, 82 M.J. 60 (under RCM 910(e), a military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea). 

United States v. Quezada, 82 M.J. 54 (military judges must give the members appropriate instructions before they deliberate on findings). 

(with respect to a false exculpatory statements instruction, a military judge does not have a duty to identify the specific statement or statements that the members might find false; on the contrary, doing so might improperly influence the panel members by placing special weight on some evidence as opposed to other evidence; furthermore, a military judge does not have a duty to instruct the members that a false statement has any probative value other than that it is false). 

United States v. Moratalla, 82 M.J. 1 (before accepting a guilty plea, a military judge must ensure that there is a factual basis for the accused’s plea; a factual predicate for a plea of guilty is sufficiently established if the factual circumstances as revealed by the accused himself objectively support that plea). 

(in obtaining a factual basis for a plea, a military judge must elicit actual facts from an accused and not merely legal conclusions). 

(despite the existence of an otherwise adequate basis for a plea, if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; however, a mere possibility of conflict is not enough).   

2020 (October Term)

United States v. Jacinto, 81 M.J. 350 (under Article 40, UCMJ, a military judge for reasonable cause may grant a continuance to any party for such time, and as often, as may appear to be just, and when ruling on a continuance motion, the military judge may consider a variety of factors). 

(MRE 513 [the military’s psychotherapist-patient privilege] allows a military judge to examine the evidence of records or communications of a patient other than the accused, or a proffer thereof, in camera, if such examination is necessary to rule on the production or admissibility of such protected records or communications). 

United States v. Castro, 81 M.J. 209 (during a guilty plea inquiry, a military judge must determine whether there is an adequate basis in law and fact to support the plea before accepting it).

United States v. Tyler, 81 M.J. 108 (although the unsworn victim statement is not subject to the Military Rules of Evidence, a military judge is not powerless to restrict its contents; the military judge has an obligation to ensure the content of a victim’s unsworn statement comports with the parameters of victim impact or mitigation as defined by RCM 1001A (now RCM 1001(c)).    

United States v. Henry, 81 M.J. 91 (MRE 602 requires that a witness must have personal knowledge in order to testify; when it comes to personal knowledge, the military judge’s role is to determine whether there is sufficient evidence for a reasonable court member to find that declarant had personal knowledge of his declaration; this is not a high bar ).

(with respect to the excited utterance exception to the hearsay rule, the members must first determine whether a declarant had personal knowledge of what the declarant stated; a military judge’s analysis on this point is confined to whether a reasonable member could find that the declarant had personal knowledge; second, the members must determine what weight to give hearsay statements, and how to interpret them; a military judge oversteps when he or she searches for alternative theories and forces the government to prove to him or her what weight to give hearsay statements). 

(with respect to the excited utterance exception to the hearsay rule, the military judge should focused his analysis on whether the government had shown by a preponderance of the evidence that: (a) the declarants were excited; (b) the alleged event was startling; and (c) whether, if the event had happened, the declarant could have still been under the excitement of the event; no further corroboration of the startling event is required, and it is inappropriate for the military judge to look for alternate theories of what could have prompted the excited statements). 

United States v. Uribe, 80 M.J. 442 (military judges should be especially circumspect in deciding whether to disqualify themselves in deciding a joint recusal motion). 

(the proper focus of an inquiry into the appearance of bias between a military judge and a party is whether the relationship between the judge and party raises special concerns, whether the relationship was so close or unusual as to be problematic, and/or whether the association exceeds what might reasonably be expected in light of the normal associational activities of an ordinary military judge). 

(in this case, the military judge failed to recognize that his friendship with the trial counsel raised special concerns where he had formed a close personal bond that transcended the routine personal and professional relationships commonly found between a military judge and a party who appears before that military judge; as a result, based not only on the frequency of their contact but also on the nature of the relationship, the judge abused his discretion when he denied a joint recusal motion from both trial and defense counsel; simply stated, granting this motion was necessary in order to maintain public confidence in the integrity and fairness of the military justice system because the judge’s impartiality in this case could reasonably be questioned). 

2019 (October Term)

United States v. Watkins, 80 M.J. 253 (a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar).

(when an accused seeks to excuse and replace civilian counsel, he also may implicitly be seeking a continuance in order to procure replacement counsel; a military judge should require the accused to explicitly address this issue on the record; when an accused’s request to release and replace counsel could create the need for a continuance, the factors announced in US v. Miller, 47 MJ 352 (CAAF 1997), can guide the trial court in balancing the accused’s fundamental right to counsel of choice, the efficient and expeditious administration of justice, and the demands of the court’s calendar; principal among these in situations such as this are timing considerations, namely, whether an accused’s request to release counsel requires a continuance and, if so, what the length of such a continuance might be; other factors include surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witnesses or evidence requested, prejudice to the opponent, whether the moving party has received prior continuances, good faith of the moving party, use of reasonable diligence by the moving party, possible impact on the verdict, and prior notice).   

United States v. Carter, 79 M.J. 478 (a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings). 

(the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members; curative instructions are the preferred remedy, and absent evidence to the contrary, a jury is presumed to have complied with the judge’s instructions). 

United States v. Clark, 79 M.J. 449 (RCM 914(a) states that after a witness other than the accused has testified on direct examination, the military judge upon motion of the opposing party shall order the production of any statement of the witness that relates to the subject matter concerning which the witness has testified; a statement is defined, in part, as a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in an electrical, or other recording). 

(the Jencks Act [18 USC § 3500(b)] requires the military judge, upon motion by the accused, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, Jencks Act case law informs the analysis of RCM 914 issues).    

(at the trial level, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver a statement: (1) order that the testimony of the witness be disregarded by the trier of fact; or (2) declare a mistrial if required in the interest of justice; however, when, as here, the military judge erred in denying a RCM 914 motion, an appellate court must determine whether this error prejudiced appellant). 

United States v. Finch, 79 M.J. 389 (where an evidentiary issue is complex and/or merits a written filing by a party, it is appropriate for a military judge to place on the record his or her reasoning behind the resolution of that issue). 

(where a military judge places on the record his analysis and application of the law to the facts with respect to an evidentiary objection, deference by an appellate court to his ruling is clearly warranted; on the contrary, if a military judge fails to place his findings and analysis on the record, less deference will be accorded). 

(a military judge mishandled issues surrounding the admissibility of a child witness’s videotaped interview under a hearsay objection, (1) where he did not put any findings of fact or particularized conclusions of law on the record and thus his decision merited little deference, and (2) where he did not include in the record any analysis of why he concluded the videotape was admissible as non-hearsay under MRE 801 (the hearsay rule), nor did he specify under which subsection of MRE 801 he believed the videotape to be admissible, instead simply stating that it was admissible under the rule).  

(where there is an evidentiary objection, the proper course of action for a military judge is to review the proffered evidence before making an admissibility determination).

United States v. Easterly, 79 M.J. 325 (the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability). 

(where the two-part test for an instruction on the impact of a punitive discharge on retirement benefits is met, the military judge must be liberal in granting a request for such an instruction and may deny a request only in cases where there is no evidentiary predicate for it or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence; if given, the instruction should be appropriately tailored to the facts of the case with the assistance of counsel).

(in this case, where the government introduced evidence at trial on the merits that a Formal Physical Evaluation Board recommended that the accused be permanently retired with a 100% disability rating based on a schizophrenia diagnosis, and both parties referred to the accused’s disability rating multiple times throughout their findings arguments, the military judge did not commit any error, let alone any plain and prejudicial error, by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on the accused’s potential permanent disability retirement, where the accused did not request such an instruction; without a request for the instruction, the military judge had no sua sponte duty to give it and there was no error).    

2018 (October Term)

United States v. Voorhees, 79 M.J. 5 (military judges are neither mere figureheads nor are they umpires in a contest between the government and accused; they have a sua sponte duty to ensure that an accused receives a fair trial).

(every attorney in a court-martial has a duty to uphold the integrity of the military justice system).

(military judges are required to instruct members on the elements of each offense).

United States v. Hutchins, 78 M.J. 437 (a military judge may admit otherwise admissible evidence even though it was previously introduced on charges of which an accused has been acquitted as long as the evidence is relevant and the probative value of the proffered evidence is not outweighed by its prejudicial effect). 

(because issue preclusion was inapplicable in this case, the military judge properly examined whether the evidence related to the acquitted offenses was admissible at trial under MRE 403 and MRE 404(b); the proper way to decide admissibility is to factor in the prior acquittals as part of the balancing test under MRE 403).

United States v. Briggs, 78 M.J. 289 (RCM 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the statute of limitations as a defense if it appears that the accused is unaware of that right). 

United States v. Forbes, 78 M.J. 279 (during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it). 

United States v. Tucker, 78 M.J. 183 (where a military judge incorrectly instructed appellant on a negligence mens rea during the Care inquiry instead of a recklessness mens rea, appellant’s guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual was not provident). 

2017 (October Term)

United States v. Christensen, 78 M.J. 1 (the UCMJ does not state when a servicemember’s discharge from the armed forces becomes effective for jurisdictional purposes, and thus does not specifically address when a servicemember is no longer subject to being court-martialed; three criteria to consider when determining whether a servicemember’s discharge has been finalized for jurisdictional purposes are: (1) the delivery of a discharge certificate (a DD Form 214); (2) a final accounting of pay; and (3) the completion of the clearing process that is required under service regulations; however, this guidance is not binding when it goes against reason or policy; to be clear, if all three of the criteria have been met, then an accused unequivocally is no longer subject to court-martial jurisdiction, but if one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances).

United States v. Hardy, 77 M.J. 438 (as a practical matter, a UMC objection must be raised before the accused enters a guilty plea because the objection may affect the maximum sentence that the court-martial may impose; under RCM 910(c)(1), before a military judge accepts a guilty plea, the military judge must inform the accused of the maximum possible penalty provided by law and determine that the accused understands; the military judge cannot perform this duty accurately if a UMC objection later will result in a merger of specifications; typically, before accepting the guilty plea, the military judge asks trial counsel what the government calculates the maximum punishment to be, and the military judge then asks defense counsel if the accused agrees; by so agreeing, the accused implicitly concedes that there is no UMC objection because the remedy for such an objection would affect the maximum sentence). 

United States v. Andrews, 77 M.J. 393 (military judges have a sua sponte duty to ensure that an accused receives a fair trial; they are neither mere figureheads nor are they umpires in a contest between the government and the accused). 

(every attorney in a court-martial has a duty to uphold the integrity of the military justice system).

United States v. Simpson, 77 M.J. 279 (in the event that an accused sets up a matter inconsistent with a plea of guilty, the military judge must resolve the inconsistency or reject the plea).

United States v. Riesbeck, 77 M.J. 154 (military judges must fulfill their essential role as the sentinel of the military justice system in identifying and addressing instances of unlawful command influence). 

United States v. Short, 77 M.J. 148 (a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings; the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members).

(a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial, or where the military judge must intervene to prevent a miscarriage of justice). 

(because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions). 

2016 (October Term)

United States v. Shea, 76 M.J. 277 (generally, absent exceptional circumstances, a judge should hear and decide matters assigned unless disqualified). 

United States v. Hukill, 76 M.J. 219 (the presumption that the military judge knows and follows the law is only as valid as the law itself; the presumption cannot rectify a legal error or render it harmless).

United States v. Price, 76 M.J. 136 (a military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the judge that there is a factual basis for the plea; during the providence inquiry, a military judge has an affirmative duty to conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty; judges are advised and cautioned against regarding the use of conclusions and leading questions that merely extract from an accused ‘yes’ or ‘no’ responses during the providence inquiry; a military judge must elicit actual facts from an accused and not merely legal conclusions). 

United States v. Dockery, 76 M.J. 91 (on a challenge for cause, although it is not required for a military judge to place his or her implied bias analysis on the record, doing so is highly favored and warrants increased deference from appellate courts; although record dissertations from the military judge’s decision on implied bias are not expected, there should be a clear signal that the military judge applied the right law; however, a mere incantation of the legal test for implied bias without analysis is rarely sufficient in a close case).

United States v. McClour, 76 M.J. 23 (military judges are barred from contravening the right to a trial by members by directing members to return a verdict of guilty).

2015 (September Term)

United States v. Witt, 75 M.J. 380 (although a judge has a duty not to sit when disqualified, the judge has an equal duty to sit on a case when not disqualified; a judge who is present for duty does not have the discretion to not participate in an assigned case, absent exceptional circumstances). 

United States v. Clark, 75 M.J. 298 (the military judge of a judge alone court-martial shall make a general finding and shall in addition on request find the facts specially).

United States v. Caldwell, 75 M.J. 276 (a military judge only carries a sua sponte duty to instruct on a special defense where it is reasonably raised by the evidence).

(the military judge did not err in omitting a mistake of fact instruction as to the offense of maltreatment of a subordinate where no such defense was raised by the evidence in appellant’s case).

United States v. Henning, 75 M.J. 187 (MRE 702, which governs the admissibility of expert testimony, provides that if a military judge determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the fact of the case).  

(both US v. Houser, 36 MJ 392 (1993) and US v. Daubert, 509 US 579 (1993) provide expanded factors from those in MRE 702 for the military judge to consider in admitting expert testimony and evidence; the six Houser factors that must be established for expert testimony to be admissible are: (1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations; Daubert provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability; under Daubert, the military judge must determine:  (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling the technique’s operation; (5) the degree of acceptance within the relevant scientific community; and (6) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; although Houser was decided before Daubert, the two decisions are consistent, with Daubert providing more detailed guidance on the fourth and fifth Houser prongs pertaining to relevance and reliability).   

(under Daubert (US v. Daubert, 509 US 579 (1993)), the proponent of evidence has the burden of showing that it is admissible, and the trial judge enjoys a great deal of flexibility in his or her gatekeeping role:  the law grants a military judge the same broad latitude when he decides how to determine reliability as he enjoys in respect to his ultimate reliability determination).  

(nothing in either Daubert (US v. Daubert, 509 US 579 (1993)) or the Federal Rules of Evidence requires a military judge to admit opinion evidence that is connected to existing data only by the ipse dixit (something asserted but not proved) of the expert; a court may conclude that there is simply too great an analytical gap between the data and the opinion proffered). 

(where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted). 

2014 (September Term)

United States v. Sullivan, 74 M.J. 448 (a military judge shall disqualify himself in any proceeding in which that military judge’s impartiality might reasonably be questioned). 

(an appellate court applies an objective standard for identifying an appearance of bias with respect to a military judge by asking whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned). 

(recusal of a military judge based on an appearance of bias is intended to promote public confidence in the integrity of the judicial process; however, this appearance standard does not require judges to live in an environment sealed off from the outside world; although a military judge is to broadly construe the grounds for challenge, he should not leave the case unnecessarily). 

(in this case, where the military judge acknowledged that he had prior relationships, both professional and social, with a significant number of the court-martial participants, where the military judge and appellant were eligible for the same promotion, where both sides sought the military judge’s recusal, and where the military judge initially sought a replacement military judge before determining that one was not available, his decision not to recuse himself from presiding over the trial was not arbitrary, fanciful, clearly unreasonable, or clearly erroneous, where (1) he specifically stated on the record that none of his associations with court-martial participants would influence any of his decisions in appellant’s case, (2) appellant failed to identify any conduct by the military judge which tended to demonstrate that he inappropriately influenced the panel in this case, (3) although the military judge had to resolve a number of pretrial motions, appellant failed to point to any rulings that raised appearance concerns, (4) the military judge was forthcoming and catalogued his relationships with the participants in the trial and subjected himself to voir dire on this subject, (5) the promotion conflict was illusory because appellant was not a judge advocate and not in the same promotion category as the military judge, (6) although the parties’ joint request for disqualification did provide support for it, the circumstances surrounding the basis for the disqualification request did not provide an adequate basis to conclude that the military judge abused his discretion in denying the request, and (7) an inquiry about military judge availability from other armed services did not conclusively raise any appearance of bias concerns).    

(personal relationships between members of the judiciary and witnesses or other participants in the court-martial process do not necessarily require disqualification; however, in certain circumstances, the cumulative nature of a military judge’s relationships can create an appearance issue; in this case, the number and type of contacts that the military judge had with the participants in the court-martial appeared to simply be the natural consequence of the military judge’s length of service in the relatively small Coast Guard). 

(military judges should be especially circumspect in deciding whether to disqualify themselves in instances where both sides seek their disqualification based on an appearance of bias problem). 

United States v. Akbar, 74 M.J. 364 (it is clear that a military judge may excuse a member sua sponte under RCM 912(f)(4); that rule permits a military judge to, in the interest of justice, excuse a member against whom a challenge for cause would lie even if neither party has raised such a challenge; although a military judge has the discretionary authority to sua sponte excuse a member, he has no duty to do so). 

United States v. Murphy, 74 M.J. 302 (a military judge has a duty to accurately inform an appellant of the nature of his offense and an essential aspect of informing is a correct definition of legal concepts; however, failure to define correctly a legal concept or explain each and every element of the charged offense to the accused in a clear and precise manner is not reversible error if it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty).

(during the providence inquiry, in defining the term explosives for the purpose of sentence enhancement in a larceny offense, a military judge should inform an accused of the definition provided in RCM 103(11) and the definitions provided in 18 USC § 232(5) and § 844(j), given that these statutes are explicitly incorporated into RCM 103(11). 

United States v. Katso, 74 M.J. 273 (for the purposes of the Confrontation Clause, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant).    

United States v. Blouin, 74 M.J. 247 (if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea). 

United States v. Woods, 74 M.J. 238 (if, after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted). 

United States v. Carter, 74 M.J. 204 (the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence).

(the military judge should, as necessary, give tailored instructions to the panel members to distinguish between Article 13, UCMJ credit addressed to the government's conduct, and the use of such evidence in mitigation; the evidence of Article 13, UCMJ, violations coupled with the number of days of confinement credit already awarded can thereby be weighed as part of the totality of the evidence the panel members consider when determining the appropriate sentence for the accused).

United States v. Simmermacher, 74 M.J. 196 (when evidence is lost or destroyed, RCM 703(f)(2) sets forth the criteria and process a military judge must follow in deciding whether an accused is entitled to relief and what type of relief may be given). 

United States v. Adams, 74 M.J. 137 (when independent evidence which is sufficient to corroborate an essential fact is provided, that essential fact is admissible; if sufficient corroborating evidence of an essential fact is not provided, then the uncorroborated fact is not admissible and the military judge must excise it from the confession; the essential facts which are corroborated may be used against the accused alongside any other properly admitted evidence). 

(there is no tipping point of corroboration that would allow admission of the entire confession if a certain percentage of essential facts are found to be corroborated; for instance, if four of five essential facts were corroborated, the entire confession is not admissible; only the four corroborated facts are admissible, and the military judge is required to excise the uncorroborated essential fact; this analysis is completed by the military judge examining the potential corroboration for each essential fact the government wishes to admit). 

United States v. Buford, 74 M.J. 98 (in determining whether a private individual was acting as an agent of the government during a search and seizure for purposes of invoking Fourth Amendment protections, the military judge erred when she applied a subjective test and relied on the individual's expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether he was acting as a government agent).

United States v. McFadden, 74 M.J. 87 (after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused.  You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member). 

(to avoid issues with questions posed by members, the military judge should review and rule on the member’s questions before permitting them to be asked). 

(a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings). 

(a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial; it is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice). 

(because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members).

(the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; a military judge has the discretionary authority to sua sponte excuse the member but has no duty to do so; the discretionary authority of a military judge to excuse a member sua sponte in the interest of justice may be characterized as a drastic action). 

United States v. Castillo, 74 M.J. 39 (RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, a military judge looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well). 

United States v. Peters, 74 M.J. 31 (there is no per se rule of disqualification when a member knows or has worked with trial counsel or defense counsel; rather, such relationships are evaluated through the lens of RCM 912(f)(1)(N) and the doctrines of actual and implied bias). 

(whereas a military judge can observe the demeanor of the court members in order to determine credibility in the case of actual bias with respect to the challenge of a court member, cases of implied bias are based upon an objective test and therefore the military judge is given less deference in such cases). 

(the military judge is mandated to err on the side of granting a challenge of a court member; this is what is meant by the liberal grant mandate; because the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, in close cases military judges are enjoined to liberally grant challenges for cause; in other words, if after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted; this mandate stems from a long-standing recognition of certain unique elements in the military justice system including limited peremptory rights and the manner of appointment of court-martial members that presents perils that are not encountered elsewhere; it also serves as a preventative measure because it is at the preliminary stage of the proceedings that questions involving member selection are relatively easy to rapidly address and remedy). 

(although an appellate court does not expect record dissertations from the military judge’s decision on implied bias, it does require a clear signal that the military judge applied the right law; incantation of the legal test without analysis is rarely sufficient in a close case). 

(where a military judge determines not to grant the challenge, additional analysis on the record will better inform appellate courts in their review and determination as to whether there was an abuse of discretion; a military judge is afforded less deference if an analysis of the implied bias challenge on the record is not provided). 

(RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; a military judge looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel). 

(in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well).

(at times, appellate courts have cast the test for implied bias as one asking whether most people in the same position would be prejudiced; that may well inform the implied bias analysis, but this question is better oriented to objectively evaluate actual bias than to serve as the test for implied bias). 

(a military judge tests for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s trial was fair; thus, although a panel member’s good character can contribute to a perception of fairness, it is but one factor that must be considered in the context of the other issues raised concerning that individual’s panel membership).  

(the well-settled law that requires military judges to consider on the record whether to grant causal challenges exists not merely to have the words of the test preserved on the record, but to show that the grounds for the challenge were given serious and careful consideration in the first instance).  

(MRE 912 generally, and the Military Judges’ Benchbook specifically, direct counsel and military judges to explore relationships among panel members and others involved in the case, to ensure that they are not qualitatively of a sort that reflects the kind of bond that would undermine the fairness of a proceeding or raise the prospect of appearing to do so). 

(in this case, the military judge’s reasoning for denying the challenge for cause was problematic for two reasons; first, he did not engage the specific grounds for challenge of the member’s panel membership – the member’s professional relationship with trial counsel, special court-martial convening authority, and the investigating officer; rather, his reasoning relied solely on the member’s demeanor and thoughtfulness in answering the voir dire questions; in testing for implied bias, the judge should not have focused on the subjective qualities of the panel member, but on the effect that panel member’s presence would have on the public’s perception of whether appellant’s trial was fair; second, although the military judge here said he was considering the liberal grant mandate, the record does not provide further analysis as to why, given the specific factors in this case, the balance tipped in favor of denying the challenge). 

United States v. Vargas, 74 M.J. 1 (a judge is ultimately responsible for the control of his or her court and the trial proceedings; proper case management during a trial, necessary for the protection of an accused’s due process rights and the effective administration of justice, is encompassed within that responsibility). 

2013 (September Term)

United States v. MacDonald, 73 M.J. 426 (the military judge bears the primary responsibility for ensuring that mandatory instructions are given and given accurately). 

(if an affirmative defense is reasonably raised by the evidence, the military judge has a sua sponte duty to instruct the members on that defense; a defense is reasonably raised when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose). 

(any doubt regarding whether an affirmative defense instruction is in order should be resolved in favor of the accused). 

(during a murder trial, where appellant put on some evidence that the potential side effects of Chantix, a smoking cessation drug he was taking at the time he fatally stabbed the victim, could have affected his ability to appreciate the nature and quality or wrongfulness of his acts, the affirmative defense of involuntary intoxication was reasonably raised and the military judge had a sua sponte duty to instruct on the defense of involuntary intoxication). 

United States v. Moon, 73 M.J. 382 (if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea).

(when a charge against a servicemember may implicate both criminal and constitutionally protected conduct, the distinction between what is permitted and what is prohibited constitutes a matter of critical significance, and the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior). 

United States v. Flesher, 73 M.J. 303 (a trial judge has a special obligation to ensure that any and all scientific testimony is not only relevant, but reliable; this gatekeeping requirement is intended to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field). 

(by RCM 801(a)(4), the military judge shall rule on all interlocutory questions and all questions of law raised during the court-martial; by RCM 801(f), all sessions involving rulings made by the military judge shall be made a part of the record; and by RCM 905(d), a motion made before pleas are entered shall be determined before pleas are entered unless the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, and where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record). 

(objections made at trial may not be evaded or ignored; it is the duty of the military judge to affirmatively rule). 

(it is necessary for the military judge to make a clear record; record dissertations are not expected but rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; however, the reverse is also true; if the military judge fails to place his findings and analysis on the record, less deference will be accorded).

(a military judge is not always required to conduct a formal Daubert (509 US 579 (1993)) hearing or to precisely address each of the factors spelled out in Houser (36 MJ 392 (1993)) when deciding whether and how a proffered expert should testify; the inquiry is a flexible one; however, the analytical structure developed in the Houser and Daubert cases is quite helpful, both at the trial and at the appellate level, in determining the appropriateness of admitting expert testimony). 

(a military judge is obligated to determine whether an expert witness’s testimony would be helpful to the panel; MRE 702 states that an expert witness may provide testimony if it will assist the trier of fact to understand the evidence or determine a fact in issue; thus, an expert may testify if his or her testimony is helpful; a suggested test for deciding when experts may be used is whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject). 

(with respect to expert witness testimony, a trial judge must first assure himself or herself that a proffered expert is truly an expert). 

(MRE 702 permits an expert to be qualified by reason of experience rather than skill, training, or education; in other words, experience in a field may offer another path to expert status; even so, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is sufficient foundation rendering reliable any conceivable opinion the expert may express; if the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts; and the military judge should state on the record why he concludes that such a witness’s testimony is reliable). 

(expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness (bolstering occurs before impeachment, that is when the proponent seeks to enhance the credibility of the witness before the witness is attacked). 

United States v. Davis, 73 M.J. 268 (military judges are required to instruct members on the elements of each offense and explain available defenses; however, military judges also have broad discretion in how to craft such instructions; a matter is in issue when some evidence, without regard to its source or credibility, has been admitted upon which the members might rely if they choose). 

United States v. Finch, 73 M.J. 144 (during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it). 

(in order to ensure a provident plea, the military judge must accurately inform appellant of the nature of his offense and elicit from him a factual basis to support his plea; an essential aspect of informing appellant of the nature of the offense is a correct definition of legal concepts; the judge’s failure to do so may render the plea improvident).

United States v. Hines, 73 M.J. 119 (in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of the accused on the record). 

(if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea). 

United States v. Knapp, 73 M.J. 33 (if a witness offers human lie detector testimony, the military judge must issue prompt cautionary instructions to ensure that the members do not make improper use of such testimony). 

United States v. Payne, 73 M.J. 19 (both Article 51(c) UCMJ, and RCM 920(e)(1), require a military judge to instruct the members on the elements of each offense charged). 

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (a military judge shall perform the duties of judicial office impartially and fairly; toward this end, a military judge is required to affirmatively recuse himself, sua sponte, from a case where there is a ground for disqualification). 

LRM v. Kastenberg, 72 M.J. 364 (the military judge erred by determining at the outset of a court-martial for rape, during arraignment proceedings and before any MRE 412 or 513 evidentiary hearings, that the named rape victim would not have standing to be represented through counsel during applicable hearings arising from the MRE; MRE 412(c)(2) provides that, before admitting evidence under the rule, the military judge must conduct a hearing where the alleged victim must be afforded a reasonable opportunity to attend and be heard; MRE 513(a) also provides that a patient has the privilege to refuse to disclose confidential communications covered by the psychotherapist-patient privilege; a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel; while MRE 412(c)(2) and 513(e)(2) provide a reasonable opportunity to be heard, including potentially the opportunity to present facts and legal argument, and allows a victim or patient who is represented by counsel to be heard through counsel, this right is not absolute; a military judge has discretion under RCM 801, and may apply reasonable limitations, including restricting the victim or patient and their counsel to written submissions if reasonable to do so in context; furthermore, MRE 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling; if counsel indicates at a MRE 412 or 513 hearing that the victim or patient’s interests are entirely aligned with those of trial counsel, the opportunity to be heard could reasonably be further curtailed). 

United States v. Brown, 72 M.J. 359 (MRE 611(a) provides that the military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment; similarly, pursuant to Article 36, UCMJ, the President has directed that military judges shall ensure that the dignity and decorum of the proceedings are maintained and exercise reasonable control over the proceedings to promote the purposes of the RCMs and the MCM; courts-martial should be conducted in an atmosphere that is conducive to calm and detached deliberation and determination of the issues presented, and the military judge should prevent unnecessary waste of time and promote the ascertainment of truth).    

United States v. Schell, 72 M.J. 339 (if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge abuses his discretion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading). 

(if a military judge fails to explain the elements of an offense to an accused during a guilty plea inquiry, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty). 

United States v. Whitaker, 72 M.J. 292 (in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record).

(in conducting a providence inquiry into a guilty plea to sodomy, a military judge did not err in failing to explain why the accused’s conduct was subject to criminal sanction, where the accused admitted in a stipulation of fact to an act of oral sodomy on a sleeping victim; a sleeping victim cannot consent, and nonconsensual sexual activity is simply not protected conduct under Lawrence (539 U.S. 558 (2003)).    

United States v. Jasper, 72 M.J. 276 (while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading). 

United States v. Castellano, 72 M.J. 217 (in instructing members on an LIO of sodomy, not involving force, in violation of Article 125, UCMJ, a military judge’s decision to determine that a Marcum (60 MJ 198 (CAAF 2004)) factor (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) existed himself rather than instruct the members that they must determine the existence of a Marcum factor was error, and that this error materially prejudiced appellant’s due process rights under the Fifth and Sixth Amendments).

(none of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) are statutory elements of Article 125, UCMJ; however, in case of sodomy without force, where, but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction, whether a Marcum factor exists is not solely a legal determination left to the military judge’s discretion; where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that saving construction have constitutional significance; these facts are critical to a conviction as, absent such facts, the conduct is not criminal; therefore, they must be determined by the trier of fact; and each of the Marcum factors are fact questions in the commonsense meaning of the term; an act of sodomy either does, or does not, involve force, a child, open and notorious or public behavior, or prostitution, and, likewise, an act of sodomy either implicates a unique military interest or it does not; whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented). 

United States v. Coleman, 72 M.J. 184 (a military judge has discretion to declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings). 

United States v. Solomon, 72 M.J. 176 (there are three threshold requirements for admitting evidence of similar offenses in sexual assault cases under MRE 413:  (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under MRE 401 and MRE 402); for (2), the military judge must conclude that the members could find by a preponderance of the evidence that the offenses occurred; once these three findings are made, the military judge is constitutionally required to also apply a balancing test under MRE 403; MRE 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; in the MRE 413 context, the Rule 403 balancing test should be applied in light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible; accordingly, in conducting the balancing test, the military judge should consider the following non-exhaustive factors to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice:  strength of proof of the prior act (i.e., conviction versus gossip); probative weight of the evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for proof of the prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and the relationship between the parties; the importance of a careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion).

United States v. Caldwell, 72 M.J. 137 (before accepting a guilty plea, the military judge must conduct an inquiry to determine whether there is factual basis for the plea, the accused understands the plea and is entering it voluntarily, and the accused admits each element of the offense). 

United States v. Riley, 72 M.J. 115 (the military justice system imposes even stricter standards on military judges with respect to guilty pleas than those imposed on federal civilian judges).   

(it is the military judge’s responsibility to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness). 

(although the Military Judges’ Benchbook is not binding as it is not a primary source of law, the Benchbook is intended to ensure compliance with existing law; an individual military judge should not deviate significantly from the instructions in the Benchbook without explaining his or her reasons on the record). 

(in order to ensure that pleas of guilty are not only knowing and voluntary but appear to be so, detailed procedural rules govern the military judge’s duties with respect to the plea inquiry). 

(it is incumbent upon the military judge to ensure that an accused’s plea is a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences; the failure to inform a pleading accused that the plea will necessarily require registration as a sex offender affects whether the plea was knowingly made; given the lifelong consequences of sex offender registration, which is a particularly severe penalty, a military judge’s failure to ensure that an accused understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of her plea). 

(the military judge shoulders the primary responsibility for the acceptance of a knowing plea; while the defense counsel plays an important role in securing a provident pleas, it is the duty of the military judge to ensure that there is a knowing, intelligent, conscious waiver in order to accept the plea; to be sure, a defense counsel must inform an accused of the consequences of a guilty plea, it is the military judge who bears the ultimate burden of ensuring that the accused’s guilty plea is knowing and voluntary). 

United States v. Clifton, 71 M.J. 489 (a military judge may not summarily deny a member’s request to recall witnesses for further questioning; in light of Article 46, UCMJ, RCM 921(b), MRE 614(a), and US v. Lampani, 14 MJ 22 (CMA 1982), some analysis on the record is required; rather than summarily approving or denying such a request, a military judge must consider factors such as difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be privileged; and the objections of the parties to reopening the evidence before ruling). 

(in this case, the military judge’s summary denial of the member’s request to recall two witnesses for further questioning was plain and obvious error in light of US v. Lampani, 14 MJ 22 (CMA 1982), Article 46, UCMJ, RCM 921(b), and MRE 614(a), where the military judge did not perform an analysis of three of the Lampanifactors before summarily denying the member’s request – that is, he failed to consider the difficulty in obtaining the witnesses and the concomitant delay, the materiality of the testimony that a witness could produce, and the likelihood that the testimony sought might be privileged; in fact, without knowing the nature of the member’s questions, it was not possible to ascertain the materiality of the testimony that the recalled witnesses could have provided; although the military judge committed error by not analyzing three of the four Lampanifactors, Lampani does not provide an exhaustive list of factors to weigh; in a case such as this, it would have been appropriate for the military judge to have considered, among other things, whether the members had already been given an opportunity to ask the witnesses questions). 

(the reasons the military judge stated for denying the member’s request to recall two witnesses for further questioning were unsupported by the relevant legal principles; first, the military judge denied the request to recall a medical doctor because he had been permanently excused; the reason is not supported by law because an excused witness can be recalled; second, the military judge denied the request to recall appellant’s wife because the evidence had been closed; this reason for denying the request is also unsupported by law; a plain reading of RCM 921(b) confirms that witnesses can be recalled after presentation of evidence has concluded; RCM 921(b) states that members may request that the court-martial be reopened and that additional evidence be introduced following a military judge’s discretionary ruling on the matter). 

Hasan v. Gross, 71 M.J. 416 (the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards; the maintenance of discipline, unit cohesion, and unit morale are command responsibilities and functions; a military judge’s contempt authority is directed toward control of the courtroom; although the military judge here stated that appellant’s beard was a disruption, there was insufficient evidence on this record to demonstrate that appellant’s beard materially interfered with the proceedings).

2011 (September Term)

United States v. Barnett, 71 M.J. 248 (the military judge has an independent duty to determine and deliver appropriate instructions).

United States v. Behenna, 71 M.J. 228 (in regard to form, a military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law). 

(a military judge is only required to instruct on a defense when there is some evidence in the record, without regard to credibility, that the members could rely upon if they chose; in other words, a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could have found in the favor of the accused in regard to that defense).

United States v. Nash, 71 M.J. 83 (a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case).

(the Rules for Courts-Martial provide that military judges must remove any member who has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged). 

(while the military judge is in the best position to judge the demeanor of a member, in certain contexts, mere declarations of impartiality, no matter how sincere, may not be sufficient).

United States v. Ballan, 71 M.J. 28 (a military judge may not accept a plea of guilty until the elements of each offense charged have been explained to the accused and unless the military judge has questioned the accused to ensure that he understands and agrees that the acts or the omissions constitute the offense or offenses to which he is pleading guilty).

United States v. Hayes, 70 M.J. 454 (Article 45, UCMJ, includes procedural requirements to ensure that military judges make sufficient inquiry to determine that an accused’s plea is knowing and voluntary, satisfies the elements of charged offenses, and more generally that there is not a basis in law or fact to reject the plea; specifically, if an accused after arraignment makes in irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty). 

(consistent with Article 45, UCMJ, if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge who fails to do so has abused his or her discretion). 

(the threshold for determining when additional inquiry is required when a matter is raised that potentially offers the accused a defense to a guilty plea is the possible defense standard; an accused is not required to present a prima facie defense before the threshold for further inquiry is met; the possible defense standard is intended to serve as a lower threshold than a prima facie showing because it is intended as a trigger to prompt further inquiry pursuant to Article 45, UCMJ, and United States v. Care, 18 CMA 535, 40 CMR 247 (1969), not to determine whether the defense is available or whether members in a contested case should be given an instruction; adherence to the possible defense standard also furthers Congress’s intent behind Article 45, UCMJ, to ensure the acceptance of a guilty plea be accompanied by certain safeguards to insure the providence of the plea, including a delineation of the elements of the offense charged and an admission of factual guilt on the record). 

(an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea). 

(not every mitigating statement or word during a guilty plea requires further inquiry; thus, a military judge is not required to reopen a plea and inquire further where an accused raises the mere possibility of a defense). 

(even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obliged to make further inquiry to resolve any apparent ambiguity or inconsistency). 

United States v. St. Blanc, 70 M.J. 424 (if the accused requests trial by military judge alone, the military judge must 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). 

United States v. Winckelmann, 70 M.J. 403 (the military judge must provide instructions that sufficiently cover the issues in the case and focus on the facts presented by the evidence). 

United States v. Goodman, 70 M.J. 396 (if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; to rise to the level of inconsistency contemplated by Article 45(a), UCMJ, matters raised at trial must have reasonably raised the question of a defense or must have been inconsistent with the plea in some respect).

United States v. Pierce, 70 M.J. 391 (members must be instructed on all elements of an offense; military judges have substantial discretionary power in deciding on the instructions to give).

United States v. Schumacher, 70 M.J. 387 (a military judge must instruct members on any affirmative defense that is in issue; a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose; in other words, some evidence, entitling an accused to an instruction, has not been presented until there exists evidence sufficient for a reasonable jury to find in the accused’s favor; thus, the military judge must answer the legal question of whether there is some evidence upon which members could reasonably rely to find that each element of the defense has been established; this test is similar to that for legal sufficiency).

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (trial judges retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant). 

United States v. Gaddis, 70 M.J. 248 (military judges retain wide latitude to determine the admissibility of evidence - a determination that includes weighing the evidence’s probative value against certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury). 

(trial judges retain wide latitude to impose reasonable limits on cross-examination regarding a witness’s bias or motive to fabricate based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant). 

United States v. Eslinger, 70 M.J. 193 (a commander may testify in rebuttal to defense retention evidence that the accused’s retention is not a consensus view of the command, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions).

United States v. Phillips, 70 M.J. 161 (in a panel case, the military judge must instruct the members how to evaluate that evidence). 

United States v. Sullivan, 70 M.J. 110 (a military judge retains wide latitude to impose reasonable limits upon cross-examination). 

United States v. Hohman, 70 M.J. 98 (the military judge erred in this case by not taking appropriate action to address detailed trial defense counsel’s departure from active duty during a court-martial at the expiration of his active service; RCM 505(d)(2)(B) and 506(c) provide specific options for severance of the attorney-client relationship; among those options, defense counsel may be excused by the military judge upon application for withdrawal by the defense counsel for good cause shown; where the parties have indicated that a defense member has been excused under RCM 505(d)(2)(B), the military judge must ensure under RCM 813(c) that: (1) the record demonstrates that a competent detailing authority has determined that good cause exists for excusing counsel; and (2) that the record sets forth the basis for the good cause determination; in the present case, the military judge failed to place any of the approved reasons for severing the attorney-client relationship on the record prior to the departure of the detailed trial defense counsel from active duty). 

United States v. Arriaga, 70 M.J. 51 (a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence).

United States v. Girouard, 70 M.J. 5 (under RCM 920(e)(2), the military judge had a sua sponte duty to instruct the court members on LIOs under the prevailing law at the time regardless of appellant’s request). 

United States v. Hartman, 69 M.J. 467 (with respect to the requisite inquiry into the providence of a guilty plea for a charge against a servicemember that may implicate both criminal and constitutionally protected conduct, the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior).

(the fundamental requirement of plea inquiry under Care and RCM 910 involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct; a discussion between the trial counsel and the military judge about legal theory and practice, at which the accused is a mere bystander, provides no substitute for the requisite interchange between the military judge and the accused).

United States v. Clark, 69 M.J. 438 (when assessing the admissibility of the evidence of an accused’s demeanor, a military judge must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the judge analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the judge then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance). 

United States v. Lofton, 69 M.J. 386 (when asked, a military judge shall exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses; the purpose of the sequestration rule is to prevent witnesses from shaping their testimony to match another’s and to discourage fabrication and collusion). 

United States v. Prather, 69 M.J. 338 (the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law).

United States v. Pope, 69 M.J. 328 (the decision to permit or deny the use of demonstrative evidence generally has been held to be within the sound discretion of the trial judge; thus, there is no abuse of discretion under MRE 403 when the challenged demonstrative evidence is relevant, highly probative of critical issues, and not unfairly prejudicial).

(when demonstrative evidence is admitted, the military judge is required to properly instruct the members that the evidence is for illustrative purposes only).

United States v. Soto, 69 M.J. 304 (a plea of guilty is more than an admission of guilt - it is the waiver of bedrock constitutional rights and privileges; under controlling Supreme Court precedent, it is, therefore, constitutionally required under the Due Process Clause of the Fifth Amendment that a judge ensure that a guilty plea be entered into knowingly and voluntarily; it is axiomatic that the military justice system imposes even stricter standards on military judges with respect to guilty pleas than those imposed on federal civilian judges).   

(in order to ensure that pleas of guilty are not only knowing and voluntary but appear to be so, detailed procedural rules govern the military judge’s duties with respect to the plea inquiry; the military judge must ensure there is a basis in law and fact to support the plea to the offense charged). 

(as part and parcel of the providence of an accused’s guilty plea, the military judge shall inquire to ensure that the accused understands the pretrial agreement, and that the parties agree to the terms of the agreement; this is necessary to ensure that an accused is making a fully informed decision as to whether or not to plead guilty). 

(it is the military judge’s responsibility to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness; it is for this reason that the RCM 910(f)(3) requires that the military judge shall require disclosure of the entire agreement excepting the quantum limitations before accepting a plea of guilty; further, as required by RCM 910(h)(3), after the sentence is announced, the military judge shall both inquire into any parts of the PTA not previously examined and ensure that an accused understands all material terms; an inquiry that falls short of these requirements and fails to ensure the accused understands the terms of the agreement is error). 

(military judges need to be ever vigilant in fulfilling their responsibility to scrutinize pretrial agreement provisions to ensure that they are consistent with statutory and decisional rules, and basic notions of fundamental fairness). 

(a fundamental principle on pretrial agreements is that the agreement cannot transform the trial into an empty ritual; judicial scrutiny of PTA provisions at the trial level helps to ensure that this principle is fulfilled). 

(not every procedural failure in reviewing a pretrial agreement results in an improvident plea). 

(in this case, a provision in the pretrial agreement required that appellant request a BCD during the sentencing phase of the court-martial; this provision was placed in the quantum portion of the PTA, notwithstanding the fact that it was not a quantum limitation on the sentence; the provision was neither disclosed to the military judge prior to his accepting appellant’s plea of guilty (although the military judge specifically asked whether there were any conditions in the quantum portion), nor was it discussed with appellant before, during, or after the providence inquiry; examining the quantum portion of the agreement after the announcement of sentence, the military judge did not acknowledge the term requiring appellant to request a punitive discharge during sentencing, let alone discuss it with appellant; where the provision in question is one that goes directly to the sentence requested by an accused and imposed by the military judge, the provision is tucked away in the quantum portion of the PTA (although it is not a sentence limitation), and the parties fail to disclose the provision in response to a direct question by the military judge, the integrity of the guilty plea process itself is undermined; under the facts and circumstances of this case, it appears that the military judge was unaware that appellant’s request for a BCD was required by the PTA; thus, it cannot be said that the request did not influence the sentence imposed; under the particular facts of this case, there is a substantial basis in law to question the providence of appellant’s plea and the plea inquiry was improvident). 

United States v. Jones, 69 M.J. 294 (during a guilty plea inquiry the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it; in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record). 

United States v. Hutchins, 69 M.J. 282 (the military judge has a critical role in the severance of defense counsel; RCM 813 expressly requires the military judge to note which counsel are present or absent at each session of the court-martial; moreover, under RCM 813(c), whenever there is a replacement of counsel, either through the appearance of new personnel or personnel previously absent or through the absence of personnel previously present, the military judge shall ensure the record reflects the change and the reason for it). 

(this case underscores the importance of the military judge establishing on the record the reasons for the absence of counsel; at trial, if the parties indicate that a member of the defense team has been excused by the detailing authority for good cause under RCM 505(d)(2)(B)(iii), the military judge must ensure under RCM 813(c) that: (1) the record demonstrates that a competent detailing authority has determined that good cause exists for excusing counsel; and (2) that the record sets forth the basis for the good cause determination). 

United States v. Blazier, 69 M.J. 218 (lack of knowledge or unwarranted reliance on the work of others may make an expert opinion inadmissible: the military judge, in his capacity as a gatekeeper, must determine whether the opinion is based upon sufficient facts or data and is the product of reliable principles and methods reliably applied to the case). 

United States v. White, 69 M.J. 236 (the military judge has the initial responsibility to determine whether evidence is relevant within the meaning of MRE 401). 

United States v. Savard, 69 M.J. 211 (when one of the parties so requests, RCM 905(h) requires that the military judge hold a hearing on a written motion).

(in light of the compulsory language of RCM 905(h), the military judge erred by refusing to hold a requested pretrial Article 39(a) session before rendering his decision to deny a defense motion to enjoin the government from deposing witnesses in the Philippines).

United States v. Diaz, 69 M.J. 127 (military judges are afforded broad discretion in deciding whether or not to accept a guilty plea; when an accused enters a guilty plea, the military judge is required to make such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea). 

United States v. Yammine, 69 M.J. 70 (for evidence to be admitted under MRE 414, a rule permitting evidence of a prior act of child molestation to be admissible to show propensity to commit a charged act of molestation, the military judge must make three threshold findings: (1) whether the accused is charged with an act of child molestation as defined by MRE 414(a); (2) whether the proffered evidence is evidence of his commission of another offense of child molestation as defined by the rule; and (3) whether the evidence is relevant under MRE 401 and MRE 402; relevance under MRE 401 and MRE 402 is enforced through MRE 104(b); the military judge simply examines all the evidence in the case and decides whether the court members could reasonably find the conditional fact by a preponderance of the evidence; once the three threshold factors are met, the military judge must then apply a balancing test under MRE 403; the importance of careful balancing arises from the potential for undue prejudice that is inevitably present when dealing with propensity evidence; inherent in MRE 414 is a general presumption in favor of admission).

United States v. Roberts, 69 M.J. 23 (in order to properly determine whether evidence is admissible under the constitutionally required exception to MRE 412(a), the military judge must evaluate whether the evidence is relevant, material, and favorable to the defense; evidence is relevant if it has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; in determining whether evidence is material, the military judge looks at the importance of the issue for which the evidence was offered in relation to the other issues in this case, the extent to which this issue is in dispute, and the nature of the other evidence in the case pertaining to this issue; finally, if the military judge determines that the evidence is relevant and material, he then performs the MRE 412(b)(3) balancing test (whether the probative value of the evidence outweighs the danger of unfair prejudice to the victim’s privacy), to determine whether the evidence is favorable to the accused’s defense, and also considers the MRE 403 balancing factors). 

(in applying MRE 412, the judge is not asked to determine if the proffered evidence is true; rather, the judge serves as gatekeeper deciding first whether the evidence is relevant and then whether it is otherwise competent, which is to say, admissible under MRE 412). 

United States v. Jones, 68 M.J. 465 (military judges must instruct the members on LIOs reasonably raised by the evidence). 

United States v. Ferguson, 68 M.J. 431 (a military judge may not accept a guilty plea if it is irregular, the accused sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect; the term improvident means heedless, unwary, not circumspect; the term has also been defined as of or relating to a judgment arrived at by using misleading information or a mistaken assumption; to prevent the acceptance of improvident pleas, the military judge is required to make such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea). 

United States v. Trew, 68 M.J. 364 (in a judge-alone case, a military judge can clarify an ambiguity in the findings by making a clear statement on the record as to which alleged incident formed the basis of the conviction).

(in this case, the government charged the accused with indecent acts on “divers occasions,” introduced evidence of more than one occasion, and argued in both opening and closing statements that at least two incidents had occurred; when the military judge clarified that her guilty findings to the LIO of assault consummated by a battery on a child under 16 years were for “one occasion,” she should have made a clear statement on the record as to which alleged incident formed the basis of the conviction; the military judge’s failure to do so resulted in fatally ambiguous finding). 

United States v. Douglas, 68 M.J. 349 (a military judge can intervene and protect a court-martial from the effects of unlawful command influence by taking proactive, curative steps to remove the taint of unlawful command influence and ensure a fair trial; as a last resort, a military judge may consider dismissal when necessary to avoid prejudice against the accused; dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings; however, when an error can be rendered harmless, dismissal is not an appropriate remedy; dismissal is a drastic remedy and courts must look to see whether alternative remedies are available). 

United States v. Ashby, 68 M.J. 108 (RCM 915(a) vests military judges with the discretion to declare a mistrial when manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings; however, the discussion to the rule advises caution, noting that mistrials are to be used under urgent circumstances, and for plain and obvious reasons; because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions). 

(in this case, the error in the trial counsel’s comments referencing appellant’s invocation of his right to remain silent was harmless beyond a reasonable doubt, where the military judge took immediate corrective action which included giving the members a curative instruction, requiring trial counsel to redact her statements, asking each member individually whether he could follow the military judge’s instructions, and reminding the members at the close of the evidence about appellant’s absolute right to remain silent; because the military judge’s actions following the improper comments adequately cured the error and rendered it harmless beyond a reasonable doubt, a mistrial was not an appropriate remedy). 

United States v. Smead, 68 M.J. 44 (at trial, the military judge must ensure that the accused understands the PTA, the parties agree to the terms of the agreement, the agreement conforms to the requirements of RCM 705, and the accused has freely and voluntarily entered into the agreement and waived constitutional rights). 

(the military judge shall not accept a plea of guilty without first determining that the plea is voluntary). 

United States v. Nance, 67 M.J. 362 (Article 45(a), UCMJ, requires military judges to reject a plea of guilty if it appears that an accused has entered the plea of guilty improvidently; to prevent the acceptance of improvident pleas, the military judge has a duty to establish, on the record, the factual bases that establish that the acts or omissions of the accused constitute the offense or offenses to which he is pleading guilty; if the military judge fails to establish that there is an adequate basis in law and fact to support the accused’s plea during the providence inquiry, the plea will be improvident). 

(during the providence inquiry, the military judge is required to elicit from the accused factual circumstances that objectively support each element of the charged offense to which a plea is entered; determining whether those factual circumstances establish conduct that is or is not prejudicial to good order and discipline is a legal conclusion that remains within the discretion of the military judge in guilty plea cases). 

United States v. Collier, 67 M.J. 347 (the military judge erred in prohibiting appellant’s defense counsel from cross-examining the main government witness about an alleged homosexual romantic relationship between the witness and appellant and from introducing extrinsic evidence of such a relationship; the military judge’s ruling prevented appellant’s counsel from fully exploring this government witness’s bias and motive to misrepresent the truth and precluded appellant from presenting her theory of the case; while the military judge did permit cross-examination about a close friendship between the two, appellant wanted to show that their relationship went beyond friendship, to a sexual and romantic relationship that lasted four months, during which time they lived together, and that the witness framed appellant for larceny as a result of their romantic relationship ending badly; it is intuitively obvious that there is a qualitative difference between the breakup of a friendship and a badly ended romantic relationship, whether that romantic relationship was sexual or not; the romantic nature of a relationship has a special relevance to motivation such that allowing additional cross-examination in that area is not a mere opportunity to hammer the point home to the members; if the members had been given evidence of a sexual and romantic relationship between the witness and appellant, they might have had a significantly different impression of the witness’s credibility; as such, the military judge’s ruling was a violation of appellant’s Sixth Amendment right to confront a witness against her).

(trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant).

(while MRE 611, a rule which allows a military judge to control the scope and mode of interrogating witnesses, permits a military judge to impose limitations on the length and details of cross-examination, it does not purport to authorize preemptively shutting the door completely on otherwise relevant cross-examination). 

United States v. Riddle, 67 M.J. 335 (if, during the proceedings, the accused sets up matter inconsistent with the plea, it is the responsibility of the military judge to either resolve the inconsistency or reject the plea).

(if there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, the military judge and other officers of the court each has the independent responsibility to inquire into the accused’s mental condition). 

(the military judge cannot conduct the necessary providence inquiry into the accused’s pleas without exploring the impact of any potential mental health issues on those pleas). 

(should the accused’s statements or material in the record indicate a history of mental disease or defect on the part of the accused, the military judge must determine whether that information raises either a conflict with the plea and thus the possibility of a defense or only the mere possibility of conflict; the former requires further inquiry on the part of the military judge, the latter does not; this is a contextual determination by the military judge; however, it is prudent, but not always required, to conduct further inquiry when a significant mental health issue is raised, regardless of whether a conflict has actually arisen). 

(in this case, even though the record of trial reflected a diagnosis of bipolar disorder for which appellant was being treated at the time of trial and she arrived at the court-martial from a mental health facility and would return there at its conclusion, the military judge was not required to explain or discuss the defense of lack of mental responsibility with appellant where he was aware of appellant’s mental health history and made sure that her mental condition, current treatment, and competency to stand trial did not put the providence of her plea at issue, where appellant appeared competent and responsible before the military judge, where she claimed she was competent and responsible at the time of the offenses and her counsel agreed that she was competent and responsible at that time, where the mental status evaluation stated that she was responsible, and where no evidence existed to suggest that appellant did not understand the nature and quality or the wrongfulness of her actions when committing the offenses; the evidence before the military judge presented only the mere possibility of conflict with appellant’s guilty pleas and did not raise a substantial basis in law or fact for questioning the providence of those pleas). 

United States v. Rogers, 67 M.J. 162 (a military judge reviews a magistrate’s decision to issue a search authorization to determine whether the magistrate had a substantial basis for concluding that probable cause existed).

United States v. Conliffe, 67 M.J. 127 (where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged; however, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry, the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty).

United States v. Martinez, 67 M.J. 59 (in close cases, military judges are enjoined to liberally grant challenges for cause). 

United States v. Yanger, 67 M.J. 56 (where the possibility of a defense exists during a guilty plea inquiry, a military judge should secure satisfactory disclaimers by the accused of his defense).

United States v. Ober, 66 M.J. 393 (the military judge has an independent duty to determine and deliver appropriate instructions; the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law). 

United States v. Elfayoumi, 66 M.J. 354 (the duty of judges is to uphold the law in constitutional context; this includes the constitutional and statutory duty to ensure that an accused receives a fair trial; that means, among other things, that where a court-martial is conducted with members, deliberations will be based on the four corners of the law and not the personal views of members; to accomplish this end, the military judge has a number of tools, including the authority to oversee and conduct voir dire and to instruct members on the law and their deliberations). 

(recognizing the human condition, the law gives a military judge the added flexibility, and duty, to err on the side of caution where there is substantial doubt as to the fairness of having a member sit because of that member’s moral or religious views; thus, the military judge need not impugn the integrity or values of the member in finding actual bias, but can in context rely on the implied bias/liberal grant doctrine if substantial doubt arises that the member can put his or her views aside). 

United States v. Upham, 66 M.J. 83 (a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence).

 
(when statements made by a patient to a psychiatrist are offered under medical exception to the hearsay rule, the military judge must determine that the statements were elicited under circumstances which made it apparent to the patient that the psychiatrist desired truthful information and that only by speaking truthfully would he receive the desired benefits from the psychiatric consultation; where the mental health diagnosis and treatment is offered in the context of marital counseling, declarants may well have mixed motives as well as ulterior motives behind their words; so too, the reliability of the statements at issue may be clouded by emotional distress). 

 
(in this case, the military judge did not abuse his discretion in admitting, under the medical exception to the hearsay rule, statements that the accused’s wife made to a family advocacy nurse regarding sexual and physical abuse she suffered at the hands of the accused, where the family advocacy nurse was engaged in mental health diagnosis and referral, the statements were made with some expectation of receiving medical benefit or treatment, and the nurse did not play the role of a law enforcement agent and there was no indication of an established relationship between the nurse and law enforcement authorities; here, the nurse’s notes taken during the disclosure of the abuse appear typical to the nursing practice, suggesting diagnoses and treatment, the wife’s unnerved demeanor during her discussion of the abuse corroborates her motivation for seeking treatment, and the detailed discussion of the history and progression of abuse resembles statements made to a psychiatrist for diagnosis or treatment through counseling). 

United States v. Miergrimado, 66 M.J. 34 (a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence). 

(a military judge can only instruct on a lesser included offense where the greater offense requires the members to find a disputed factual element which is not required for conviction of the lesser violation). 

 
(the military judge did not err by instructing the members on the lesser included offense of attempted voluntary manslaughter over defense objection, where the greater offense of attempted premeditated murder required the members to find the disputed factual element of premeditation which was not required for the conviction of the lesser included offense). 

United States v. Ortiz, 66 M.J. 334 (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). 

(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). 

(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). 

United States v. Inabinette, 66 M.J. 320 (a military judge abuses his discretion if he accepts a guilty plea without an adequate factual basis to support the plea - an area in which an appellate court affords the judge significant deference; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion). 

(during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it). 

 
United States v. McIlwain, 66 M.J. 312 (except where the parties have waived disqualification of the military judge after full disclosure of the basis for disqualification, a military judge must recuse herself in any proceeding in which that military judge’s impartiality might reasonably be questioned). 

(whether a military judge should disqualify himself or herself is viewed objectively, and is assessed not in the mind of the military judge himself or herself, but rather in the mind of a reasonable man who has knowledge of all the facts; military judges should broadly construe possible reasons for disqualification, but also should not recuse themselves unnecessarily). 

(it is well-settled in military law that the military judge is more than a mere referee; the military judge is the presiding authority in a court-martial and is responsible for ensuring that a fair trial is conducted; the judge has broad discretion in carrying out this responsibility, including the authority to call and question witnesses, hold sessions outside the presence of members, govern the order and manner of testimony and argument, control voir dire, rule on the admissibility of evidence and interlocutory questions, exercise contempt power to control the proceedings, and, in a bench trial, adjudge findings and sentence; in these roles, the impartiality of a presiding judge is crucial, for the influence of the trial judge on the members is necessarily and properly of great weight, and members are ever watchful of the words that fall from him; particularly in a criminal trial, the judge’s last word is apt to be the decisive word). 

(that a military judge sat on companion cases does not, without more, mandate recusal). 

(a military judge abused her discretion by denying a defense motion to recuse herself in a members trial after declaring that her participation in companion cases would suggest to an impartial person looking in that she could not be impartial in the case and refusing to sit as trier of fact). 

(if a judge is disqualified to sit as judge alone, that judge is also disqualified to sit with members).   

United States v. Maynard, 66 M.J. 242 (the military judge did not commit plain error in failing to sua sponte rule that testimony on sentencing regarding the alleged anti-war and anti-American material left in appellant’s room after he went AWOL was improper evidence in aggravation of his AWOL offense; even if the judge erred in admitting this testimony, appellant failed to establish that the admission was plainly and obviously erroneous; under the circumstances of this case, the testimony that appellant had left behind only a few personal items when he departed for a two-week leave did not so obviously lack a direct relationship to the AWOL offense that the military judge was obliged to take sua sponte action; and even though the testimony described some of the items as anti-American propaganda, the testimony also indicated that appellant left them displayed in his barracks room; this testimony could be read to suggest that appellant intentionally left the articles in question as “a display” for those who would be investigating his disappearance).

United States v. Dacus, 66 M.J. 235 (if an accused sets up a matter inconsistent with his plea at any time during a proceeding on the plea, the military judge must either resolve the apparent inconsistency or reject the plea).

United States v. Greatting, 66 M.J. 226 (under RCM 902(a), a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned). 

 
(when assigned to the judiciary, the military judge frequently will find himself or herself in close and continuing contact with judge advocates outside the courtroom; in light of these and other circumstances, members of the military judiciary must be particularly sensitive to applicable standards of judicial conduct). 

United States v. Mackie, 66 M.J. 198 (a military judge has the authority to order a sanity board after referral under RCM 706 if it appears there is reason to believe the accused lacked mental responsibility at the time of a charged offense or lacks the capacity to stand trial; a motion for a sanity board should normally be granted if it is made in good faith and is not frivolous). 

United States v. Mitchell, 66 M.J. 176 (before accepting a guilty plea, the military judge must conduct an inquiry of the accused to ensure that there is an adequate factual basis for the plea; this inquiry must reflect that the accused understands the plea and is entering it voluntarily; the accused must admit to each element of the offenses to which the accused is pleading guilty; if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea).

United States v. Allende, 66 M.J. 142 (the military judge authenticates the record of each general court-martial). 

United States v. Reed, 65 M.J. 487 (in the course of addressing command influence issues, military judges must consider apparent as well as actual unlawful command influence).

United States v. Townsend, 65 M.J. 460 (military judges should apply a liberal grant mandate in ruling on challenges for cause asserted by an accused).

 
(there is no basis for the application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause). 

United States v. Hunter, 65 M.J. 399 (military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his plea and the accused’s consent to do so must be ascertained; the accused must know and understand not only the PTA’s impact on the charges and specifications which bear on the plea, but also other terms of the agreement, including consequences of future misconduct or waiver of various rights; reflecting these concerns, RCM 910(f)(4) requires that where a plea agreement exists, the military judge shall inquire to ensure: (A) that the accused understands the agreement; and (B) that the parties agree to the terms of the agreement; this inquiry is part and parcel of the providence of an accused’s plea, and necessary to ensure that an accused is making a fully informed decision as to whether or not to plead guilty; an inquiry that falls short of these requirements and fails to ensure the accused understands the terms of the agreement is error). 

United States v. Rhoades, 65 M.J. 393 (under RCM 901(d)(3), if it appears that any counsel may be disqualified, the military judge shall decide the matter and take appropriate action). 

(the military judge must rule on a disqualification motion prior to trial on the merits; because it may be difficult at that stage to assess with precision whether, or to what extent, the grounds for disqualification could affect the trial, the military judge is afforded broad discretion in ruling on disqualification motions). 

(even when an accused is willing to waive a grounds for disqualification of counsel, the military judge has substantial latitude in deciding whether to accept the waiver; although courts must recognize a presumption in favor of an accused’s counsel of choice, that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict). 

 
(in view of the broad discretion afforded a military judge when acting on a pretrial disqualification motion, the military judge is not required to determine whether there is proof beyond a reasonable doubt that the attorney is guilty of a statutory post-employment restriction, such as 18 USC § 207(a)(2), designed to protect the integrity of government functions, including trial proceedings; rather, a record that demonstrates a reasonable likelihood that counsel’s representation would violate that restriction is sufficient to show a serious potential for conflict that may overcome the presumption in favor of the accused’s counsel of choice; under such circumstances, the military judge has discretion to disqualify counsel). 

(the decision by the military judge to disqualify appellant’s civilian defense counsel did not constitute an abuse of discretion and did not deprive appellant of his right to counsel of choice under the Sixth Amendment, where the record was sufficient to demonstrate a reasonable likelihood that the counsel’s representation of appellant at trial would violate 18 USC § 207(a)(2), a statute designed to protect the integrity of government functions, including trial proceedings; civilian defense counsel had served as an active duty judge advocate at appellant’s installation immediately prior to entering private practice and had provided advice to CID agents and other military trial attorneys with respect to the investigation of appellant that led to the charges at issue, and these events took place within the statutory restriction period; as such, counsel’s continued representation created a serious potential for conflict, which provided a sufficient basis for the military judge to refuse appellant’s waiver of conflict-free representation). 

United States v. Falcon, 65 M.J. 386 (a military judge is obligated to reopen the plea inquiry when a possible defense has been raised and not satisfactorily refuted because such a matter would be inconsistent with the accused’s guilty plea; however, the mere possibility of a defense, without more, does not give rise to this obligation).

(the military judge did not abuse his discretion when he did not reopen the providence inquiry to advise the accused of the possibility of a partial mental responsibility defense to a charge of making and uttering checks without sufficient funds under Article 123a, UCMJ, because of statements made during the trial relating to the accused’s gambling addiction and his diagnosis as pathological gambler, where there was the lack of any testimony that the accused’s diagnosis could have affected his ability to form the specific intent to defraud and the lack of any authority that such a diagnosis may provide a partial mental responsibility defense).

2007

(the military judge erred when he advised the accused that his guilty plea waived his right against self-incrimination with respect to the unauthorized absence offense to which he pleaded guilty and that he retained that right with respect to the greater offense of desertion to which he pleaded not guilty, and then later, when the defense counsel asked the military judge to consider the accused’s providence inquiry statements after the close of the government’s evidence, the military judge concluded that he could consider everything that he had heard up to that point, without further questioning or advising the accused; this, of course, was error because it was inconsistent with the advice the military judge gave the accused on the greater offense of desertion and therefore, beyond the accused’s express waiver of his privilege against self-incrimination). 

(military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his guilty plea and the accused’s consent to do so must be ascertained). 

(after having expressly advised the accused that the stipulation of fact entered into in conjunction with his guilty pleas would be used, as indicated in the stipulation’s first paragraph, for the limited purposes of determining the providence of his guilty pleas to unauthorized absence and for determining the sentence, the military judge erred in conducting no inquiry into a later paragraph of the stipulation that suggested a broader use by the prosecution of the stipulation and the included exhibits on the greater offense of desertion; without further inquiry into this paragraph to clarify the apparent inconsistency between it and the first paragraph, there was an insufficient basis to determine that the accused knowingly consented to the use of the stipulation and the adjoining exhibits in the government’s case on the merits of the desertion offense). 

United States v. Sanchez, 65 M.J. 145 (with respect to expert testimony offered pursuant to MRE 702, the military judge has a gatekeeping role; as gatekeeper, the judge is tasked with ensuring that an expert’s testimony both rests on a reliable foundation and is relevant). 

(four factors that a judge may use to determine the reliability of expert testimony are:  (1) whether a theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field). 

(the test for determining the reliability of expert testimony is flexible, and the four factors that a judge may use to determine reliability do not constitute a definitive checklist or test; the focus is on the objective of the gatekeeping requirement, which is to ensure that the expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field). 

(the military judge’s inquiry into the reliability of expert testimony is a flexible one, and the gatekeeping inquiry must be tied to the facts of a particular case; the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable; consequently, the trial judge has the same kind of latitude in deciding how to test an expert’s reliability as it enjoys when it decides whether that expert’s relevant testimony is reliable). 

(the focus of the military judge’s inquiry into the reliability of expert testimony is on the principles and methodology employed by the expert, without regard to the conclusions reached thereby).

(under MRE 702, the military judge is required at a minimum to determine whether the expert witness’s conclusion could reliably follow from the facts known to the expert and the methodology used, mindful that conclusions and methodology are not entirely distinct from one another; trained experts commonly extrapolate from existing data; whether attempting to determine if there is too great an analytical gap between the data and the opinion proffered, or whether the proffered testimony falls outside the range where experts might reasonably differ, the goal is to ensure that expert testimony or evidence admitted is relevant and reliable, as well as to shield the panel from junk science). 

(nothing requires that a military judge either exclude or admit expert testimony because it is based in part on an interpretation of facts for which there is no known error rate or where experts in the field differ in whether to give, and if so how much, weight to a particular fact in deriving an opinion; such a bright-line requirement would be at odds with liberal admissibility standards of the federal and military rules; the adversary system, including vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible expert evidence). 

United States v. Mack, 65 M.J. 108 (when the legality of an order is at issue, the issue must be decided by the military judge, not the court-martial panel). 

(when the defense moves to dismiss a charge on the grounds that the charged order was not lawful, the military judge must determine whether there is an adequate factual basis for the allegation that the order was lawful).

(the military judge erred by treating the legality of a pretrial restriction order as a mixed question of fact and law to be resolved by the court members; as a matter of law, the presence of factual questions did not relieve the military judge of his responsibility to decide, as a preliminary matter, whether the order in the charged breaking restriction offenses was lawful).

United States v. Tippit, 65 M.J. 69 (the accused’s guilty pleas were not rendered improvident by his alleged mistaken belief that his RCM 707 speedy trial issue would be preserved for appeal if he entered unconditional guilty pleas, where the military judge did not have an affirmative duty under RCM 910 to instruct an accused that unconditional guilty pleas waived further review of an RCM 707 speedy trial claim). 

United States v. Schroder, 65 M.J. 49 (before admitting evidence of other acts of child molestation under MRE 414, the military judge must make three threshold findings:  (1) that the accused is charged with an act of child molestation as defined by MRE 414(a); (2) that the proffered evidence is evidence of his commission of another offense of child molestation; and (3) that the evidence is relevant under MRE 401 and MRE 402). 

(before admitting evidence of other acts of child molestation under MRE 414, the military judge must also conduct a MRE 403 balancing analysis, applying factors that include:  strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties). 

United States v. Shaw, 64 M.J. 460 (if an accused sets up matter inconsistent with the guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea).

(when, either during the plea inquiry or thereafter, and in the absence of prior disavowals, circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency; the existence of an apparent and complete defense is necessarily inconsistent with a plea of guilty). 

(military judges should take particular care to make sure that considerations of mental health do not put the providence of a guilty plea at issue; RCM 706(a) imposes an obligation on a military judge to notify the officer authorized to order a mental exam when there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial). 

(at trial, the military judge may reasonably rely on both a presumption that the accused is sane and the long-standing principle that counsel is presumed to be competent; moreover, the President has assigned the burden of proving lack of mental responsibility to the accused; thus, when the accused is presenting his sentencing statement through or with the assistance of counsel, the military judge may properly presume, in the absence of any indication to the contrary, that counsel has conducted a reasonable investigation into the existence of the lack of mental responsibility defense; this is particularly so when a matter raised during sentencing does not in and of itself present an apparent or possible defense). 

(it may be prudent for a military judge to conduct further inquiry when a significant mental health condition is raised during a guilty plea inquiry in light of military law and practice regarding mental health issues and to obviate such issues on appeal; whether further inquiry is required as a matter of law is a contextual determination). 

United States v. Pena, 64 M.J. 259 (as a general matter, the military judge does not have an affirmative obligation to initiate an inquiry into early release programs as part of the plea inquiry). 

United States v. Cossio, 64 M.J. 254 (military judges must be careful to restrict findings of fact to things, events, deeds, or circumstances that actually exist as distinguished from legal effect, consequence, or interpretation).

United States v. Lee, 64 M.J. 213 (courts-martial must not only be just, they must be perceived as just; the requirement of Article 46, UCMJ, for equal access to witnesses and evidence secures that just result and enhances the perception of fairness in military justice; where the government has found it necessary to grant itself an expert and present expert forensic analysis often involving novel or complex scientific disciplines, fundamental fairness compels the military judge to be vigilant to ensure that an accused is not disadvantaged by a lack of resources and denied necessary expert assistance in the preparation or presentation of his defense).

2006

United States v. Madigan, 63 M.J. 118 (if relevant evidence is destroyed, lost, or otherwise not subject to compulsory process and such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party). 

(the military judge may exclude drug-test results if he finds there has been a substantial violation of regulations intended to assure reliability of the testing procedures). 

(when addressing command influence issues, the military judge’s duty is to allocate the burdens between the prosecution and the defense; in discharging his duty of allocating the burden, the military judge engages in a two-stage process to permit the parties to establish the factual predicate related to any issues of unlawful command influence; the military judge initially requires the defense to carry the burden of raising an unlawful command influence issue; this threshold showing must be more than mere command influence in the air or speculation; but because of the congressional prohibition against unlawful command influence and its invidious impact on the public perception of a fair trial, this threshold is low; the test is some evidence of facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial in terms of its potential to cause unfairness in the proceedings; if the military judge concludes that the defense has raised the issue of unlawful command influence, the burden shifts to the government to show either that there was no unlawful command influence or that the unlawful command influence did not affect the proceedings).  

(the military judge has affirmative responsibilities to avoid the appearance of evil in his courtroom and to foster public confidence in court-martial proceedings). 

(a military judge has great discretion in fashioning a remedy to protect against unlawful command influence). 

United States v. Lewis, 63 M.J. 405 (once unlawful command influence is raised, it is incumbent on the military judge to act in the spirit of the UCMJ by avoiding even the appearance of evil in his courtroom and by establishing the confidence of the general public in the fairness of the court-martial proceedings).

United States v. Leonard, 63 M.J. 398 (military judges are enjoined to follow a liberal grant mandate in evaluating challenges for cause because implied bias is reviewed under an objective standard, through the eyes of the public and focusing on the appearance of fairness).

(a military judge abused his discretion and violated the liberal grant mandate in denying defense challenge of a court member for cause where that member revealed that the alleged rape victim’s responsibilities for his flight gear included packing his parachute and servicing his flight helmet; in an acquaintance rape case where the credibility of the alleged victim was the linchpin of the case, the member’s significant relationship of trust with the alleged victim would diminish the public perception of a fair and impartial court-martial panel, undermine the appearance of fairness in the military justice system, and give rise to implied bias). 

United States v. Zachary, 63 M.J. 438 (a military judge has a duty under Article 45, UCMJ, to explain to the accused the defenses that he raises during a providence inquiry; Article 45(a) requires that, in a guilty-plea case, inconsistencies and apparent defenses must be resolved by the military judge or the guilty pleas must be rejected).

United States v. Moreno, 63 M.J. 129 (military judges must follow the liberal-grant mandate in ruling on challenges for cause” asserted by an accused; the liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge). 

2005

United States v. Augspurger, 61 M.J. 189 (the military judge should ensure that the members’ findings, as announced, are clear as to the factual basis for an offense; first, the military judge should properly instruct the members that if they except the “divers occasion” language from a specification, they need to make clear which allegation was the basis for their guilty finding; second, after the military judge examines the findings worksheet but prior to announcement, the military judge should ask the members to clarify any ambiguous findings; once the findings of a court-martial have been announced, any finding that amounts to a finding of not guilty is not subject to reconsideration or a post-trial session such as a proceeding in revision).
 
(it is the responsibility of military judges to ensure that any ambiguities in findings are clarified before the findings are announced, and if they fail to do so, the appellate courts cannot rectify that error). 

United States v. Rollins, 61 M.J. 338 (when the evidence raises an issue concerning the statute of limitations, the military judge must provide the members with instructions that focus their deliberations on the period not barred by the statute of limitations).

2002

United States v. Quintanilla, 56 MJ 37 (the military judge is the presiding authority in a court-martial and is responsible for ensuring that a fair trial is conducted).

2001

United States v. Pineda, 54 MJ 298 (a defense counsel may not ask for a punitive separation from the service in contravention of an accused’s wishes, and a military judge must make appropriate inquiries where a conflict exists between defense counsel’s request and an accused’s apparent wishes).

(military judge failed to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate where there was no indication on the record that appellant desired punitive separation).

2000

United States v. Smith, 52 MJ 337 (while the military judge should be circumspect and refrain from injecting himself into the proceedings by propounding theories of his own for either party, Article 39(a)(4), UCMJ, and MRE 104(a) contemplate that the military judge determine the admissibility of evidence, which includes reasonable assessment of a party’s position in a particular case).

1999

United States v. Abrams, 50 MJ 361 (RCM 701(g) provides for the regulation of discovery by the military judge, placing at his disposal various means, such as in camera reviews, protective orders, or partial disclosure, to ensure the balance between an accused’s right to a fair trial, judicial efficiency and confidentiality considerations).

United States v. Gray, 51 MJ 1 (military judge did not abuse his discretion and fail to ensure appellant received fair trial in light of pretrial publicity where, although he rejected defense-proffered solutions, he did permit extensive voir dire, instructed the members not to expose themselves to any particular information about the accused, instructed the members to use common sense in dealing with media coverage, and twice ruled that the members were impartial in fact).