2023 (October Term)
United States v. Leipart, 85 M.J. 35 (a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary).
(the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; in a guilty plea context, a military judge who has advised an accused that he is waiving his right against self-incrimination only to those offenses to which he is pleading guilty cannot later rely on those statements as proof of a separate offense; neither the guilty plea itself nor any related statements as to one offense may be admitted to prove any element of a separate offense; to do so would compel an accused to incriminate himself in the separate criminal proceeding).
(the presumption that the military judge knows and follows the law is only as valid as the law itself).
(misstatements by the trial counsel are not imputed to the military judge, absent evidence the military judge adopted the rationale of the misstatements).
United States v. Armstrong, 85 M.J. 31 (a military judge should be disqualified if there is an appearance of bias; in the military context, the appearance of bias principle is derived from RCM 902(a) which provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned).
(there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings).
(a military judge must avoid undue interference with the parties' presentations or the appearance of partiality).
(judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge; they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible).
United States v. Tapp, 85 M.J. 19 (an accused has a constitutional right to an impartial judge).
(the validity of the military justice system and the integrity of the court-martial process depend on the impartiality of military judges in fact and in appearance).
H.V.Z. v. United States and Fewell, 85 M.J. 8 (in this case, the military judge did not commit clear and indisputable error when he determined that the victim's health and mental health records were in the possession, custody, or control of military authorities for the purposes of RCM 701(a)(2) allowing the defense to inspect any documents in the possession, custody, or control of military authorities; the medical treatment facility that held the records was located on a military base that served active duty military members, retirees, and their families, was commanded by a military officer, and its mission included military readiness; considering the deference afforded to the military judge in the procedural posture of this case, the plain meaning of military authorities can be construed to include this medical treatment facility).
(in this case, under MRE 513(e), the military judge was required to provide the victim with the opportunity to be heard on the production of her mental health records, and his conclusion that the victim lacked standing to oppose the production of her medical and mental health records amounted to clear and indisputable error).
United States v. Cole, 84 M.J. 398 (in this case, during the providence inquiry into the charged offense of simple assault with an unloaded firearm, the military judge improperly identified the offense for the accused as an assault consummated by battery, and he erroneously listed for the accused the elements for aggravated assault with a dangerous weapon; as such, it was unclear whether the military judge sentenced the accused for aggravated assault with a dangerous weapon or for simple assault with an unloaded firearm, thereby materially prejudicing appellant's substantial right to be sentenced for the correct offense based on a consideration of the nature, circumstances, and seriousness of the offense).
(military judges are presumed to know the law and to follow it absent clear evidence to the contrary).
United States v. Hasan, 84 M.J. 181 (whether an appellate military judge must recuse himself or herself from sitting on a given case is assessed according to the standards laid out in RCM 902; in relevant part, that rule provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned; and the standard for deciding the MCM judicial-disqualification question is whether a reasonable person who knew all the facts might question these appellate military judges' impartiality; this requirement for recusal enhances public confidence in the judicial system by ensuring that judges avoid the appearance of partiality).
(the tension created by the placement of the military judiciary within the officer personnel structure requires military judges to be sensitive to particular circumstances that may require consideration of recusal; each case must be assessed on its own merits; the mere fact that military judges may issue rulings adverse to the interests of superior officers, however, does not in itself preclude those judges from exercising independence in their judicial rulings; also, standing alone, preparation of fitness reports for appellate military judges by senior judge advocates does not create a circumstance in which the impartiality of a judge might reasonably be questioned under RCM 902(a); however, there may be facts and circumstances that call for recusal).
(in this case, the removal of the SJA as the rater of the CCA judges did not moot the issue of whether the judges were required to recuse themselves from appellant's case where the CCA had decided motions on issues pertaining to the SJA before he was removed as the judges' rater and thereby calling the validity of those decisions into question).
2022 (October Term)
United States v. Cunningham, 83 M.J. 367 (military judges are presumed to know the law and follow it absent clear evidence to the contrary).
(a military judge understands that emotions cannot enter the final determination of a sentence).
United States v. Vargas, 83 M.J. 150 (a ruling by a military judge may be affirmed if the ruling reached the correct result for the wrong reason).
2020 (October Term)
United States v. Tyler, 81 M.J. 108 (if a military judge arrives at the correct result, even if for the wrong reason, an appellate court may affirm the ruling).
(although the military judge erred in his reasoning that the trial counsel could comment on the contents of the unsworn victim statement admitted under RCM 1001A (now 1001(c)) simply because they could have been admitted as substantive evidence under RCM 1001(b)(4), such error was harmless because either party may comment on properly admitted unsworn victim statements under RCM 1001A (now 1001(c))).
United States v. Uribe, 80 M.J. 442 (the validity of the military justice system and the integrity of the court-martial process depend on the impartiality of military judges in fact and in appearance; therefore, actual bias is not required; an appearance of bias is sufficient to disqualify a military judge).
(in the military context, the appearance of bias principle is derived from RCM 902(a); this rule provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned; the test for identifying an appearance of bias is whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned; this is an objective standard; recusal based on an appearance of bias is intended to promote public confidence in the integrity of the judicial process; but this appearance standard does not require judges to live in an environment sealed off from the outside world; indeed, personal relationships between members of the judiciary and participants in the court-martial process do not necessarily require disqualification; however, the existence of a social relationship creates special concerns which a professional relationship does not).
(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).
2018 (October Term)
United States v. Bodoh, 78 M.J. 231 (in this case involving an allegation of sexual assault, where trial counsel erred when questioning appellant by asking a series of clearly impermissible questions founded on the false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts, the military judge fully cured trial counsel’s error by (1) sustaining the defense’s objection to the questioning, (2) ruling that trial counsel had misstated the law, and (3) properly summarizing the law by stating that there was nothing that says a person cannot have sex with somebody who has taken alcohol or a cough and flu medication; in light of the military judge’s curative measures, appellant failed to establish that trial counsel’s improper questioning was prejudicial).
2015 (September Term)
United States v. Witt, 75 M.J. 380 (the terms “disqualification” and “recusal” for a judge are closely related; whereas disqualification refers to the basis for a judge not to be able to sit on a case, “recusal” refers to the judge’s refusing to sit on grounds of disqualification).
United States v. Rapert, 75 M.J. 164 (military judges are presumed to know the law and to follow it absent clear evidence to the contrary).
2012 (September Term)
United States v. Salyer, 72 M.J. 415 (the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling).
2010 (September Term)
United States v. Phillips, 70 M.J. 161 (when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly).
United
States v. McMurrin, 70 M.J. 15 (the military judge
clearly erred when he found negligent homicide to be an LIO of
involuntary
manslaughter).
2009 (September Term)
United
States v. Ediger,
68 M.J. 243 (military judge properly adopted his predecessor’s earlier
determination that testimony regarding appellant’s prior molestation of
another
child was admissible under MRE 414, despite the fact that the
government
dismissed an indecent liberties charge alleging that appellant
masturbated in
front of the child victim, where the government did not dismiss a
corresponding
false official statement specification which charged that he had made a
false
official statement that he had never masturbated in the victim’s
presence;
because the same conduct raised in the dismissed charge, alleged
masturbation
in front of the victim, remained at issue in appellant’s court-martial
despite
the government’s dismissal of the indecent liberties charge, the
analysis
undertaken by the predecessor judge was still relevant and applicable
despite
the government’s dismissal of the indecent liberties charge).
2008 (September Term)
United
States v. Matthews, 68 M.J. 29 (given the plain
meaning of the word “courts,”
it is reasonable to conclude that MRE 509, creating a privilege for
“deliberations of courts and grand and petit juries,” applies to
military
judges).
(consistent with MRE 101, and
the text of MRE
509 itself, and in light of the prevailing federal common law rule that
the
deliberative process of judges is protected from disclosure, MRE 509, creating a privilege for “deliberations
of courts and grand and petit juries,” protects the deliberative
process of military
judges from disclosure).
(a military judge’s
deliberative process should
generally be free from consideration in post-judgment proceedings
because (1)
the prohibition against compelling the testimony of a judge is to
protect the
integrity of the legal system itself, (2) such testimony threatens the
finality
of judgments, (3) deliberative process testimony disrupts one of the
basic
tenants of evidentiary law – reliability,
(4) the concerns surrounding deliberative process testimony are
compounded because a judge’s testimony regarding his own deliberations
is
essentially irrebuttable, and (5) the medium for evaluating a military
judge’s
reasoning is the record of trial, not a post-trial DuBay
factfinding
hearing).
(it
is well-settled law that testimony revealing the deliberative thought
processes of judges is inadmissible).
(the portions of a trial
military judge’s
post-trial DuBay factfinding hearing testimony in which he
explained his
deliberative process and reasoning at a court-martial were unreviewable
evidence that could not be considered by a Court of Criminal Appeals).
(the federal common law
protection of the
deliberative processes of judges is incorporated into military law
through MRE
509, and encompasses military judges sitting alone; although the term
“privilege” in this context is ambiguous, it is interpreted in a manner
consistent with federal common law, and thus also in a manner
consistent with
both MRE 509 and MRE 101).
United
States v. Wiechmann, 67 M.J. 456 (because a
military judge is not
appointed to conduct proceedings until charges are referred to a
court-martial,
the military justice system does not have standing courts at the trial
level to
address legal issues at the pre-referral stage; the convening authority
exercises responsibility for pretrial matters that would otherwise be
litigated
before a judge in civilian proceedings, including issues involving the
conduct
of depositions, issuance of protective orders, availability of
government-funded
experts, mental responsibility proceedings, and questions concerning
the
validity of charges).
United
States v. Sanders, 67 M.J. 344 (as the
sentencing authority, a military judge
is presumed to know the law and apply it correctly, absent clear
evidence to
the contrary).
United
States v. Riddle, 67 M.J. 335 (a military
judge can presume, in the absence
of contrary circumstances, that the accused is sane and, furthermore,
that
counsel is competent).
United
States v. Bragg, 66 M.J. 325 (an appellate
court gives a military judge
great deference when deciding whether actual bias exists because it is
a
question of fact, and the judge has observed the demeanor of the
challenged
member; a military judge is afforded less deference when an appellate
court
reviews a challenge for cause based on implied bias because the issue
is
objectively viewed through the eyes of the public, focusing on the
appearance
of fairness; thus, issues of implied bias are reviewed under a standard
less
deferential than abuse of discretion but more deferential than de novo;
however, a military judge who addresses implied bias by applying the
liberal
grant mandate on the record will receive more deference on review than
one that
does not; an appellate court does not expect record dissertations 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 surely warranted).
(in the context of implied
bias, a military
judge need not doubt the sincerity or veracity of a member’s statements
that he
could evaluate the evidence with an open mind, in order to nonetheless
conclude
that the member should not sit; it is not always possible to resolve
facts or
determine credibility and still remove the perception of doubt as to
whether a
member should sit; implied bias and the liberal grant mandate allow a
military
judge to uphold the letter and spirit of RCM 912 without at the same
time
questioning a member’s statement that he can sit with an open mind).
(military judge erred in
denying defense
challenge for cause of a senior member on the panel who indicated
during voir
dire that he was aware of information about the case not available to
the other
members and from a source not readily available to others, and who
suggested
that prior to trial, it was likely that he would have been in a
position to
recommend, and may have recommended adverse administrative action
against the
accused, for conduct forming the basis of the charges before the
court-martial;
the liberal grant mandate exists for cases like this; viewing the
factual
circumstances objectively, a member of the public would have
substantial doubt
that it was fair for this member to sit on a panel where that member
had likely
already reached a judgment as to whether the charged misconduct
occurred; this
perception of unfairness is compounded when that member has likely
reached such
a conclusion based on information gained prior to trial).
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).
United
States v. McIlwain, 66 M.J. 312 (an accused has
a constitutional right to an
impartial judge).
(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. Bridges, 66 M.J. 246 (as the
sentencing authority, a military judge
is presumed to know the law and apply it correctly absent clear
evidence to the
contrary).
United
States v. Greatting, 66 M.J. 226 (an accused has
a constitutional
right to an impartial judge).
(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 abuses his discretion when the findings of fact upon
which he
predicates his ruling are not supported by the evidence of record, if
incorrect
legal principles were used, or if his application of the correct legal
principles to the facts is clearly unreasonable).
(the military judge abused his
discretion in this case by denying the defense
request for a sanity board, where the trial defense counsel detailed
concerns
that because of the accused’s memory loss, he might not be able to
assist in
his own defense, might not be fit to stand trial, and that similar
memory loss
may have occurred during the alleged misconduct, where the accused
submitted an
affidavit detailing specific instances of blackouts and memory loss
over a
six-month period, and where the opinions of the accused’s treating
clinical
psychologist in the form of a stipulation of expected testimony were
not an
adequate substitute for a sanity board; this psychologist had seen the
accused
twice by appointment and once for a brief walk-in conversation, never
conducted
a forensic examination or participated in a sanity board, and was
unaware of
the accused’s claimed memory losses and blackouts).
2007
United States v. Moran, 65 M.J. 178 (military
judges, unlike lay members, are presumed capable of filtering out
inadmissible evidence).
2006
(both the
accused and the government are
permitted to question the military judge and to present evidence
regarding a
possible ground for disqualification; should grounds arise, the
military judge
shall disqualify himself or herself in any proceeding in which that
military
judge’s impartiality might reasonably be questioned).
United
States v. Hill, 62
M.J. 271 (MRE 606(b) does not apply to military judges; an
extra-judicial
statement by a military judge may be given appropriate consideration on
appeal,
subject to certain qualifications).
(as a general matter, military judges are
presumed to know the rules of evidence and to consider testimony only
for
permissible purposes; that presumption is strengthened by the prompt
action of
a trial judge, which expressly cuts off and rejects questionable
testimony;
just as it is presumed that the members follow the instructions of the
military
judge, it is also presumed that a military judge adheres to his own
evidentiary
rulings).
2000
United
States v. Robbins, 52 MJ 455 (a military judge is
presumed
to know the law and apply it properly, is presumed capable of filtering
out
inadmissible evidence, and is presumed not to have relied on such
evidence on
the question of guilt or innocence).
United
States v. Norfleet, 53 MJ 262 (military judges are
expected to render decisions that may adversely impact on their
superior
officers; such decisions by the military judiciary are essential to the
maintenance of a military justice system that not only is fair, but
that also
is perceived to be fair by members of the armed forces and the public).
1999