TRIAL STAGES: Initial Review: Authentication of Record of Trial

2008 (Transition)


United States v. Allende, 66 M.J. 142 (the military judge authenticates the record of each general court-martial; trial counsel may authenticate the record if the military judge cannot do so by reason of his death, disability, or absence; in circumstances not pertinent to the present case, there are other options for substitute authentication).  


(the person who authenticates the record of trial in the absence of the military judge should attach to the record of trial an explanation for the substitute authentication; any deficiency with respect to explaining the need for substitute authentication is tested for prejudice under a harmless error standard of review). 



United States v. Kulathungam, 54 MJ 386 (the requirement for verbatim record of trial, authenticated by a military judge, facilitates appellate review and instills confidence in the military justice system).


United States v. Ayers, 54 MJ 85 (record of trial was properly authenticated by an assistant trial counsel after military judge had retired:  (1) assistant trial counsel was qualified and certified as counsel under Article 27(b) and was therefore authorized by Article 38(d) to authenticate the record; (2) if assistant trial counsel was acting under the supervision of trial counsel, or if he was detailed after trial to act as trial counsel for the purpose of preparing the record, he was authorized by RCM 502(d)(5) to authenticate the record; (3) even if assistant trial counsel was not detailed after trial to be the trial counsel, and even if he was not acting under trial counsel’s supervision, such a technical, regulatory violation was harmless where there was no assertion that the record was not accurate; (4) the form of authentication was not defective because when a person signs the record as authenticating official, that person thereby declares that the record accurately reports the proceedings; and (5) the four pages of corrections submitted by assistant trial counsel demonstrate that he did more than merely examine the record).


United States v. Abrams, 50 MJ 361 (matters reviewed in camera must be sealed and attached to the record to facilitate appellate review; see MRE 506(i)(4)(D); RCM 701(g)(2); RCM 1103(b)(3)(B)).

(an incomplete or non-verbatim record raises a presumption of prejudice which the government may rebut; an insubstantial omission fails to raise the presumption of prejudice; the question of what constitutes a substantial omission is determined on a case-by-case basis).

(substantial omissions from the record of trial are those which affect the rights of the accused at trial, including the rights to confrontation and cross-examination; omission from record of potential impeachment matters reviewed by military judge in camera prevents appellate court from determining both whether those matters were substantial and whether there was a violation of Brady v. Maryland, 373 U.S. 83 (1963)).

United States v. Villareal, 52 MJ 27 (failure to include military judge’s special findings on unlawful command influence motion in the record of trial did not prejudice appellant at action as the verbatim record was not misleading or so incomplete as to prevent meaningful review, nor was appellant prejudiced during initial appellate review as he was in possession of those findings and on notice as to what they were at the time).

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