U.S. v. Ayers, 54 M.J. 85

Core Criminal Law Subjects: Crimes: Article 134 -- Assault, Indecent Pre-2019 offenses

1. evidence was legally insufficient to show that alleged victim of indecent assaults did not consent where: (1) she knew the appellant was being flirtatious; (2) she invited herself to a movie in the day room, sneaked out of her barracks room, and voluntarily followed appellant into a conference room; (3) she admitted that she was interested in and infatuated with appellant; (4) she admitted she was a willing participant; (5) she once waited for appellant to return when he left briefly; (6) she cooperated with appellant’s instructions as he began to massage her; (7) she stated that she did not consider the acts an assault or rape; (8) she called appellant and talked to him several times over the following few days; (9) she voluntarily met with him again; (10) she did not report the incident until summoned to the commander’s office; and (11) her testimony, in sum, was that there was no unwanted sexual touching

Core Criminal Law Subjects: Evidence: Authentication

1. claim that a general regulation is not authentic or is not what it purports to be, is an evidentiary objection, based on lack of proper authentication, and is waived if not timely made

Core Criminal Law Subjects: Evidence: Judicial Notice

1. a general regulation is a proper subject of judicial notice

Core Criminal Law Subjects: Evidence: Waiver

1. claim that a general regulation is not authentic or is not what it purports to be, is an evidentiary objection, based on lack of proper authentication, and is waived if not timely made
2. where defense counsel announced “no objection” to military judge taking judicial notice of a general regulation, any objections to judicial notice of the regulation or the lack of authentication were waived

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Proof, persuasion

1. when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; at trial, the defense must show that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. a general regulation is entitled to a presumption of regularity if it appears regular on its face
2. a general regulation is entitled to a presumption of regularity if it appears regular on its face

Trial Stages: Initial Review: Authentication of Record of Trial

1. 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

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

1. legal sufficiency of the evidence is a question of law that is reviewed de novo; the test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt
2. (where an assertion of unlawful command influence is litigated at trial, military judge’s findings of fact are reviewed under a clearly-erroneous standard, and the legal conclusion of whether those facts constitute unlawful command influence is reviewed de novo). (when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; on appeal, the defense must show that the proceedings appeared to be unfair and that the unlawful command influence was the cause of the appearance of unfairness)

Miscellaneous Matters: Command Influence: Generally

1. the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial
2. appellant failed to meet his initial burden of showing that comments of senior military leaders dealing with the class of cases under which appellant’s case fell would constitute actual or apparent unlawful command influence on the findings: (1) views of senior leadership were not injected into appellant’s court-martial; (2) evidence suggests comments in issue were precipitated by events at an entirely different military installation; (3) none of the comments suggest that appellant was guilty; (4) appellant did not link the media publicity to his case; and (5) appellant did not present any evidence that his court-martial appeared unfair as a result of the alleged unlawful command influence

Miscellaneous Matters: Command Influence: Burdens

1. when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; at trial, the defense must show that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings
2. when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; on appeal, the defense must show that the proceedings appeared to be unfair and that the unlawful command influence was the cause of the appearance of unfairness
3. the quantum of evidence required to raise the issue of unlawful command influence is some evidence; more than mere allegation or speculation

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Regulations

1. a general court-martial convening authority is authorized to publish general orders and regulations; it is not necessary for the commander issuing the general regulation to sign it personally; so long as the decisional authority, which is discretionary in nature, remains with the commander, the signature authority, which is delegated, is wholly ministerial in nature
2. a general regulation is a proper subject of judicial notice
3. a general regulation is entitled to a presumption of regularity if it appears regular on its face
4. claim that a general regulation is not authentic or is not what it purports to be, is an evidentiary objection, based on lack of proper authentication, and is waived if not timely made