Generally:
2021 (October Term)
United States v. Givens, 82 M.J. 211 (RCM 905(b)(1) requires that any pretrial motion asserting defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing, must be raised before a plea is entered; thus, challenges alleging defects in the preferral of the charges must be raised prior to entry of pleas).
(at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver).
(claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause).
2020 (October Term)
United States v. Henry, 81 M.J. 91 (RCM 905(d) provides that where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record; it is those findings that provide appellate courts the ability to review the military judge’s rulings; the fact that there was other evidence available to the military judge to support his ruling does not mean that he considered it or found it credible unless he says so in his essential findings).
2010 (September Term)
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).
2008 (Transition)
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).
2000
United
States v. Johnson, 53 MJ 459 (where an accused has
sufficiently important, legally-cognizable interests in the materials
or
testimony sought, and thereby has standing, there is no reason why a
third-party challenge either to a subpoena duces tecum or a
subpoena
ad testificandum could not be raised during an Article 32
investigation).
(standing to object to a subpoena duces tecum or a subpoena
ad
testificandum during an Article 32 investigation exists when the
actions of
the government impact upon the reliability of the evidence presented
against an
accused at trial, e.g., coerced confessions, unlawful command
influence,
interference with the rights of confrontation or cross-examination, and
interference with the right to present evidence).
(where testimony of accused’s wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable).
2004
United
States v. Giles, 59 MJ 374 (as a matter of policy,
ordinarily,
all known charges should be tried at a single court-martial; as a
matter of
law, a party may move for trial of designated offenses at a separate
court-martial through a motion for severance of offenses, but only to
prevent
manifest injustice).
(under
RCM
906(b)(10), a military judge is required to grant a severance motion
when
necessary to avoid a manifest injustice).
(in
this case,
the Government’s decision to try the perjury charge at the rehearing on
the
underlying drug-related specifications instead of ordering a separate
trial
created a substantial risk of impermissible crossover; the questions
raised by
the president of the panel, based on the evidence admitted under the
military
judge’s limiting instruction, demonstrated that the senior member of
the panel
had a reasonable basis for concluding that appellant had been tried,
convicted,
and sentenced to a discharge for the same drug-related specifications
that were
now under consideration; the military judge permitted the Government to
introduce evidence on the perjury charge under which the members could
reasonably conclude that appellant had been tried and convicted in the
first
trial of the same drug-related specifications that were before them in
the
second trial, and they also could reasonably conclude that something
had
happened between the first and second trials to convince the Government
that
appellant had lied at the first trial when she denied that she had
knowingly
purchased an illegal substance; under these circumstances, the perjury
evidence
was both irrelevant and highly prejudicial to appellant’s right to
receive a
fair trial on the drug-related specifications; the limiting instruction
by the
military judge, repeated without any meaningful amplification after the
president of the court-martial identified the prejudicial nature of the
evidence, simply told the members to suspend their understanding of the
basic
mechanics of the military justice system; as such, the instructions
were
insufficient to prevent a manifest injustice; under the facts of this
case, the
rulings by the military judge on both pretrial motions and evidentiary
objections produced errors that caused actual prejudice and prevented
the
accused from receiving a fair trial).
2002
United
States v. Simpson, 56 MJ 462 (the military justice
system
encourages the joinder of all known offenses at one trial and permits a
motion
for severance of offenses only to prevent manifest injustice).
(military judge’s decision on a motion to sever is reviewed for an
abuse of
discretion).
(an abuse of discretion will be found only where the defendant is
able to
show that the denial of a severance caused him actual prejudice in that
it
prevented him from receiving a fair trial; it is not enough that
separate
trials may have provided him with a better opportunity for an
acquittal).
(to determine whether a military judge has failed to prevent a
manifest
injustice and denied an appellant a fair trial by denying a motion to
sever, a
three-prong test is applied: (1) whether the evidence of one offense
would be
admissible proof of the other; (2) whether the military judge provided
a proper
limiting instruction; and (3) whether the findings reflect an
impermissible
crossover).
(the military judge did not abuse his discretion in denying
appellant’s
motion for a severance where: (1) offenses occurring earlier in time
were
admissible for the limited purpose of demonstrating appellant’s
tendency to
take advantage sexually of women who were intoxicated or under the
influence of
alcohol; (2) the members were given proper instructions, including a
limiting
instruction; and, (3) in light of the military judge’s instructions and
the
evidence of record, the findings did not reflect an impermissible
crossover).
2000
United
States v. Duncan,
53 MJ 494 (joinder of offenses at a court-martial is more
permissive than joinder in federal district court; but where offenses
are “the same
or similar” in character, they may be joined for trial in both
systems).
(a military judge, like a federal district court judge, has
discretionary
power to sever the trial of certain offenses; an abuse of that
discretion will
be found only where the defendant is able to show that the denial of a
severance caused him actual prejudice in that it prevented him for
receiving a
fair trial).
(although recognizing that evidence of one rape and brutalization
would not
be admissible to show another rape and brutalization a month earlier,
military
judge did not abuse his discretion in refusing to sever charges
where:
(1) he gave limiting instructions three times to consider the offenses
separately; (2) he took steps to bifurcate the presentation of evidence
and
argument by trial counsel to prevent spillover; and (3) court could be
confident that members were able to follow instructions to consider
offenses
separately).