2018 (October Term)
United States v. Lewis, 78 M.J. 447 (a military judge is allowed to draw reasonable inferences from the evidence presented).
2015 (September Term)
United States v. Bess, 75 M.J. 70 (under RCM 921(b), court members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced; the military judge may, in the exercise of discretion, grant such request).
(while the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process).
2010 (September Term)
United
States v. Lofton, 69 M.J. 386 (the military
judge may direct a post-trial
session at any time before authenticating the record).
United
States v. Flores, 69 M.J. 366 (in a guilty
plea context, a military judge
who has advised an accused that she is waiving her right against
self-incrimination only to those offenses to which she is pleading
guilty
cannot later rely on those statements as proof of a separate offense;
to do so
would compel an accused to incriminate herself in the separate criminal
proceeding).
United
States v. Jones, 69 M.J. 294 (a military
judge’s denial of an accused’s
request to review the government’s evidence of child pornography
against him
prior to and during his providence inquiry did not violate the
accused’s Sixth
Amendment to make a defense because the accused did
not seek to review the evidence to prepare a defense; the accused
retained at all times the right to withdraw from the pretrial
agreement, plead
not guilty, and require the government to prove the offenses against
him; the
accused sought to review the evidence of
child
pornography to assist him in pleading guilty, and not to assist him in
his
defense).
United
States v. Morton, 69 M.J. 12 (in cases where
offenses are pleaded for exigencies of proof, depending on what the
plea
inquiry reveals or of which offense the accused is ultimately found
guilty, the
military judge may properly accept the plea and dismiss the remaining
offense).
United
States v. Neal, 68 M.J. 289 (in the military
justice system, the authority of the military judge in a court-martial
does not
cease upon the discharge of the members; the military judge retains
control
over a court-martial until the record is authenticated and forwarded to
the
convening authority for review; until that point, even after discharge
of the
members and adjournment of the court-martial, the military judge may
take
actions such as: reconsidering rulings
(RCM 905(f)); reconvening the court-martial to correct an erroneous
sentence
announcement, (RCM 1007(b)); calling a session to clarify an ambiguous
sentence
imposed by either the military judge or the members (RCM 1009(c)); and
directing post-trial sessions (RCM 1102); these authorities illustrate
that a
court-martial does not cease to exist upon discharge of the members,
and a case
remains in an interlocutory posture so long as the military judge has
the power
to take action under the UCMJ and RCMs).
United
States v. Wuterich, 67 M.J. 32 (under RCM
703(f)(4)(C), if the person having
custody of evidence requests relief on grounds that compliance with the
subpoena or order of production is unreasonable or oppressive, the
military
judge may direct that the subpoena or order of production be withdrawn
or
modified; under the rule, the military judge may direct that the
evidence be submitted
to the military judge for an in camera inspection in order to determine
whether
such relief should be granted).
United
States v. Webb, 66 M.J. 89 (Article 39(a),
UCMJ, authorizes military
judges to take such action after trial and before authenticating the
record as
may be required in the interest of justice; before authentication of
the
record, the military judge has the authority to conduct a post-trial
session,
set aside findings of guilty and the sentence, and order a new trial
for a
discovery violation).
(a military judge does not
have authority under
Article 73, UCMJ, to order a new trial).
(prior to authentication, a
military judge has
authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a
post-trial
session to consider newly discovered evidence and to take whatever
remedial
action is appropriate).
United States v. Harrow, 65 M.J. 190 (the military
judge is permitted in a borderline guilty plea case to give weight to
the defense evaluation of the evidence).
United States v. Carruthers, 64 M.J. 340 (the exposure of
a witness’s motivation in testifying is a proper and important function
of the constitutionally protected right of cross-examination; however,
the Confrontation Clause of the Sixth Amendment does not prevent a
trial judge from imposing any limits on a defense counsel’s inquiry
into the potential bias of a prosecution witness; 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; the judge may restrict cross-examination when
the probative value of the evidence sought would be substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members).
United States v. Green, 64 M.J. 289 (in a bench
trial, a military judge is not precluded from setting forth his reasons
for the sentence imposed).
(a military judge may not
interject his or her personal beliefs into the sentencing process).
2005
United
States v. Deisher,
61 M.J. 313 (when a servicemember is charged with violation of a lawful
order,
the legality of the order is an issue of law that must be decided by
the
military judge, not the court-martial panel).
(the
lawfulness
of an order, like other issues of law, may involve questions of fact
that must
be addressed by the military judge for the limited purpose of resolving
the
issue of law; the consideration of such factual matters by the military
judge
in the course of addressing an issue of law is distinct from, and does
not
preempt, the responsibility of a court-martial panel to address factual
matters
pertinent to the elements of an offense in the course of returning
findings on
the issue of guilt or innocence).
(when
the
defense moves to dismiss a charge on the grounds that the alleged order
was not
lawful, the military judge must determine whether there is an adequate
factual
basis for the allegation that the order was lawful; in the course of
acting on
such a motion, if the military judge rules that a specific set of words
would
constitute a lawful order under a specific set of circumstances, that
is a
preliminary ruling; the military judge’s ruling does not relieve the
prosecution of the responsibility during its case-in-chief of proving
beyond a
reasonable doubt the facts necessary to establish the elements of the
offense).
(the lawfulness of an order is
not an
element, but is an issue of law to be resolved by the military judge,
not
members; in this case, the military judge committed prejudicial error
in ruling
on the motion to dismiss by treating both the issue of lawfulness and
the
predicate factual aspects of the lawfulness issue as matters to be
resolved by
the members and by submitting the issue of lawfulness to the
members).
2002
United
States v. Quintanilla, 56 MJ 37 (a military judge
does not
exercise general jurisdiction over cases arising under the UCMJ; a
military
judge may exercise authority only over the specific case to which he or
she has
been detailed).
(a military judge may issue a warrant of attachment to compel the
presence
of a civilian witness, but only under very specific circumstances as
set forth
in RCM 703(e)(2)(G)(ii); military judges do not have the power to treat
non-compliance with a subpoena as a contempt of court).
United
States v. Humpherys, 57 MJ 83 (military judges
possess
ample authority to protect the attorney-client relationship during
consideration of disqualification motions, including the power to
examine
evidence in camera, seal records of any Article 39(a) sessions, exclude
unnecessary persons from hearings, and issue protective orders).
2001
United
States v. Anderson, 55 MJ 198 (military judge
lacks
inherent power to compel a victim to undergo nonconsensual examination,
but the
military judge and a trial counsel can use the persuasive powers of
their
offices to secure the witness’ consent to such examination).
1999
United
States v. Gray, 51 MJ 1 (rejecting claim that military
capital
sentencing procedure is unconstitutional because the military judge
lacks the
power to adjust or suspend a sentence of death that is improperly
imposed; see
United States v. Loving,
41 MJ 213, 297 (1994), aff’d on
other
grounds, 517 U.S. 748 (1996)).
United
States v. Biagase, 50 MJ 143 (a military judge, as the
“last
sentinel” to protect a court-martial from the effects of unlawful
command
influence, can intervene and protect the proceedings).
United
States v. Roth, 52 MJ 187 (sequestration and sanctions
for
violations of a sequestration order are matters within the discretion
of the
court, and such matters will be reviewed on appeal under an abuse of
discretion
standard).
(MRE 615 dealing with exclusion of witnesses from the court room is
a rule
of evidence which may be relaxed during the sentencing portion of the
trial).