TRIAL STAGES: Initial Review: Preparation of Record of Trial

2021 (October Term)

United States v. Tate, 82 M.J. 291 (although the Rules for Courts-Martial generally require the record of trial to include a verbatim transcript of all sessions except sessions closed for deliberations in serious cases—and impose consequences when that requirement cannot be satisfied—until 2019 the Rules did not authorize any remedial actions that a court could perform to cure a nonverbatim transcript; in the absence of any guidance from the Rules, military courts have long authorized three potential solutions when court recording devices fail:  (1) declaring a mistrial; (2) reconstructing the record of trial; and (3) starting anew).   

(the Rules for Courts-Martial mandate the preparation of a verbatim transcript for any general court-martial where the adjudged sentence includes confinement for twelve months or more or a bad-conduct discharge.

(a verbatim transcript must include all proceedings including sidebar conferences, arguments of counsel, and rulings and instructions by the military judge). 

(a verbatim transcript need not be actually verbatim but will suffice when it is substantially verbatim).

(the lack of a verbatim transcript for any general court-martial where the adjudged sentence includes confinement for twelve months or more or a bad-conduct discharge is a jurisdictional error that cannot be waived). 

(to determine whether a transcript is verbatim, the threshold question is whether the omitted material was qualitatively or quantitatively substantial; an omission is qualitatively substantial when it directly relates to the sufficiency of the government’s evidence on the merits and cannot be recalled with any degree of fidelity; omissions are quantitatively substantial unless the totality of the omissions in the record becomes so unimportant and so uninfluential when viewed in light of the whole record, that it approaches nothingness). 

(in this case, a recording device’s failure to capture the sentencing proceedings, including approximately four hours of witness testimony and the introduction of multiple documentary exhibits, resulted in loss that was both qualitatively and quantitatively substantial; first, the omissions encompassed the military judge’s explanation of appellant’s rights, the entiretyof the government’s case, and the start of appellant’s sentencing case; second, the omissions were quantitatively substantial where they were of such a scope that it is impossible to suggest that the omitted recordings could be considered approaching nothingness; accordingly, the failed recording resulted in substantial omissions in the record such that the record was not verbatim).

(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)).   

(there are limits to reconstructing a verbatim record; if the reconstruction results in a record that is equivocal such that it leaves uncertaintyas to the substance of the lost testimony, it will not suffice). 

(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)). 

(in this case, after the court’s recording device failed during appellant’s sentencing hearing, the military judge stated that he was going to start appellant’s sentencing hearing anew, but contrary to his stated intent, the military judge indicated during the second sentencing hearing that he would only consider the testimony of the government’s witnesses that fell within the scope of their unrecorded testimony from the previous day; this choice to disregard testimony from the second hearing if it went beyond the witnesses’ lost testimony from the first hearing resulted in a hybrid proceeding that did notstart the proceedings anew but was instead dependent on, and intrinsically tied to, the unrecorded testimony from the first day of sentencing; the military judge’s reliance upon the unrecorded testimony to frame his sentencing decision failed to remedy the nonverbatim transcript, creating a jurisdictional error). 

(if a military judge fails to cure a substantial omission in the record of trial and a nonverbatim transcript results, RCM 1103(f) (2016 ed) is triggered and the remedy lies within the sole discretion of the convening authority; if, because of loss of recording or notes, or other reasons, a verbatim transcript cannot be prepared when required by 1103(b)(2)(B), a record which meets the requirements of (b)(2)(C) of this rule shall be prepared and the convening authority may: (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved; or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial).

United States v. Miller, 82 M.J. 204 (a complete record of the proceedings and testimony shall be prepared in each special court-martial case in which the sentence adjudged includes a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months). 

(a substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the government must rebut). 

(the President made substantial changes to post-trial processing with the 2019 RCM; under the new procedural rules, an accused’s time line for submitting clemency matters begins when the sentence is announced, not when the record of trial is served on him or her, as the accused now has ten days from the announcement of sentence to submit matters for convening authority review; in addition, the record of trial is no longer a trigger for the time line to submit post-trial matters by the accused; instead, the only restrictions to the timing of the convening authority’s action, under the new rules, is that the convening authority consult with the staff judge advocate and consider any timely RCM 1106 clemency matters; any action by the convening authority must occur before entry of judgment by the military judge, and entry of judgment must occur before the court reporter certifies the record of trial; the convening authority’s decision on action can occur before the record of trial is complete).

2019 (October Term)

United States v. Reyes, 80 M.J. 218 (the UCMJ requires a complete record of the proceedings and testimony of a general court-martial only when the adjudged sentence includes a punitive discharge or any other punishment which exceeds that which may otherwise be adjudged by a special court-martial; however, neither Article 54, UCMJ, nor RCM 1103 require a complete or verbatim record in cases such as the initial trial in this case, when the charges were withdrawn before a sentence was adjudged).    

2013 (September Term)

United States v. Davenport, 73 M.J. 373 (the requirement that a record of trial be complete and substantially verbatim in order to uphold the validity of a verbatim record sentence is one of jurisdictional proportion that cannot be waived). 

(a nonverbatim transcript and an incomplete record are separate and distinct errors under the RCM). 

(a verbatim transcript includes all proceedings including sidebar conferences, arguments of counsel, and rulings and instructions by the military judge; and a verbatim transcript of all sessions is required when (i) any part of the sentence adjudged exceeds six months confinement, forfeiture of pay greater than two-thirds pay per month, or any forfeiture of pay for more than six months or other punishments that may be adjudged by a special court-martial, or (ii) a bad-conduct discharge has been adjudged).

(a verbatim transcript was required in this case because the military judge sentenced appellant to two years of confinement and a bad-conduct discharge). 

(by definition, if there is not a verbatim transcript, there is also no complete record; however, while in the case of most incomplete records, prophylactic measures are not prescribed, and the missing material or remedy for same are tested for prejudice, where the record is incomplete because the transcript is not verbatim, the procedures set forth in RCM 1103(f) control). 

(in assessing either whether a record is complete or whether a transcript is verbatim, the threshold question is whether the omitted material was substantial, either qualitatively or quantitatively). 

(despite the dictionary definition of the term verbatim, transcripts need not be word for word, but must be substantially verbatim; a transcript may be deemed substantially verbatim though it has certain omissions; omissions are qualitatively substantial if the substance of the omitted material related directly to the sufficiency of the government’s evidence on the merits, and the testimony could not ordinarily have been recalled with any degree of fidelity; omissions are quantitatively substantial unless the totality of omissions becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness). 

(in this case, the complete omission of testimony of a government witness on the merits from the trial transcript was a substantial omission that rendered the transcript nonverbatim, where the content of the testimony was equivocal even after attempts to reconstruct it at a DuBay hearing; the omission was substantial both quantitatively, because the entire testimony was omitted, and qualitatively, because the substance of the omitted testimony presumably related directly to the government’s evidence on the merits and could not be recalled with fidelity).

(when a verbatim transcript cannot be prepared, the plain language of RCM 1103(f) provides that there are only two remedial options available to the convening authority; under that rule, the convening authority may (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved, or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial).

(where a record of trial is nonverbatim, the convening authority is limited to the remedies listed in RCM 1103(f); no authority exists for applying the remedy for an incomplete record to a nonverbatim transcript; accordingly, in this case, where the transcript remained nonverbatim after the DuBay hearing, RCM 1103(f) limits the remedies available to a rehearing or a modified sentence). 

United States v. Flesher, 73 M.J. 303 (by RCM 801(f), all sessions involving rulings made by the military judge shall be made a part of the record). 

2008 (Transition)

United States v. Allende, 66 M.J. 142 (Article 54(a) requires each general court-martial to keep a record of the proceedings; under the direction of the military judge, the trial counsel makes arrangements for preparation of the record; the trial counsel examines the record and makes any necessary corrections; during this process, the trial counsel permits the defense counsel to examine the record except when unreasonable delay will result).

 
(a complete record of the proceedings, including a verbatim written transcript, must be prepared for each general court-martial in which the sentence includes a discharge; substantial omissions from the record create a presumption of prejudice that may be rebutted by the government). 

 
2001

United States v. Kulathungam, 54 MJ 386 (it is inappropriate for a trial counsel to add to the record of trial things that were not said or done at the court-martial; however, such misconduct does not require reversal when there is no impact on the pleas or sentence).

(trial counsel, responsible for preparation of the record of trial, who discovers that the military judge did not announce findings based upon appellant’s guilty pleas, should call the matter to the attention of the military judge or seek advice from the military judge or a more experienced attorney, rather than unilaterally inserting findings into the record).

(although trial counsel erroneously inserted findings of guilty into the record of trial prior to authentication, even though no findings were announced based on appellant’s guilty pleas, this error did not substantially prejudice appellant).

2000

United States v. Stoffer, 53 MJ 26 (although record of trial was missing the charge sheet, convening order, post-trial recommendation, three defense exhibits, and three appellate exhibits, appellant was not prejudiced as to the approved findings because:  (1) the record establishes proper preferral and referral of the charge; (2) the record showed service of the charge upon appellant after referral; (3) after the appellant’s guilty plea, the military judge conducted a thorough providence inquiry; and (4) the pretrial agreement was admitted, and a meticulous inquiry by the military judge ensured appellant understood its ramifications).

(where record of trial was missing the charge sheet, convening order, post-trial recommendation, three defense exhibits, and three appellate exhibits, and where the government failed to show that these omissions were non-prejudicial or harmless error as to sentence, the appellant could not receive a sentence that included a bad-conduct discharge; these were substantial omissions, and the Court would not presume what was in the missing defense sentencing exhibits which were not further identified after they were introduced without objection).

United States v. Henry, 53 MJ 108 (a substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the government must rebut; insubstantial omissions from a record of trial do not raise a presumption of prejudice or affect the record’s characterization as a complete one).