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).
2001
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).
2000
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).
1999
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)).