U.S. v. Abrams, 50 M.J. 361

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. RCM 701(g) provides for the regulation of discovery by the military judge, placing at his disposal various means, such as in camera reviews, protective orders, or partial disclosure, to ensure the balance between an accused’s right to a fair trial, judicial efficiency and confidentiality considerations

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. 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

Trial Stages: Pretrial: Discovery

1. RCM 701(g) provides for the regulation of discovery by the military judge, placing at his disposal various means, such as in camera reviews, protective orders, or partial disclosure, to ensure the balance between an accused’s right to a fair trial, judicial efficiency and confidentiality considerations

Trial Stages: Initial Review: Authentication of Record of Trial

1. 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)
2. 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
3. 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)

Trial Stages: Appeals: Remedies › Generally

1. where military judge examined personal personnel records in camera, but those records were not sealed and attached to the record of trial, proper appellate review is impossible; case was remanded to the court below with an order to produce the missing records

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. 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