U.S. v. Pomarleau, 57 M.J. 351

Core Criminal Law Subjects: Witnesses: Ake Appointments

1. as a matter of military due process, servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense, without regard to indigency upon a showing that the requested assistance is relevant and necessary to the defense case, and the Government cannot or will not provide an adequate substitute
2. an accused is entitled to expert assistance at the Government’s expense in order to have a meaningful opportunity to present his or her evidence and challenge the Government’s scientific proof, its reliability, and its interpretation when a proper showing of necessity and relevance is made

Trial Stages: Pretrial: Discovery

1. under the circumstances of this case, the military judge erred by excluding defense evidence as a discovery sanction for untimely defense disclosure without conducting a factfinding hearing or otherwise ascertaining the cause for untimely disclosure by the defense, and by not making findings of fact on the record as to whether less restrictive measures could have remedied any prejudice to the Government arising from untimely disclosure
2. RCM 701 imposes certain duties upon the defense, including the affirmative duty to inform the prosecution of the names and addresses of all witnesses the defense intends to call during its case-in-chief, and the duty to notify the prosecution of certain defenses the accused intends to assert at trial; moreover, the rule provides that when the defense asks the prosecution to disclose certain specified types of documents, tangible objects, and reports, the defense incurs a reciprocal obligation to provide similar material to the prosecution
3. military courts possess the statutory authority to impose sanctions for noncompliance with discovery requirements, ranging from an order permitting discovery to an order prohibiting the offending party from offering evidence not disclosed
4. where the military judge excluded defense evidence as a sanction for a discovery violation, the Court reviewed the military judge’s ruling to exclude evidence for an abuse of discretion; findings of fact were reviewed for clear error, and conclusions of law are reviewed de novo
5. a military judge has the duty to regulate the discovery process to ensure the timely administration of justice, and to protect against surprise and attempts to present unreliable evidence to the members; this does not, however, permit blind adherence to prudential concerns at the expense of an accused’s right to be heard fully in his or her defense
6. in reviewing alleged discovery violations and considering sanctions to impose, the military judge must balance an accused’s right to compulsory process against the countervailing public interests that the rule is designed to protect and, in the final analysis, ensure that the penalty imposed is not disproportionate to the purposes the rule is designed to serve
7. proper consideration by the military judge of the significance of the contested evidence or testimony to the defense case, prejudice to the Government, efficacy of less severe remedies, and the willfulness of the violation, before resorting to the most harsh sanction for a discovery violation, will ensure that the interests of the accused, as well as countervailing public interests, are given appropriate weight
8. given the significance of the exhibits and testimony excluded as a sanction for a discovery violation, the military judge was obligated to consider whether a less restrictive measure, such as a continuance, could have remedied any prejudice to the Government under these circumstances
9. if the reasons for a discovery sanction provided by the military judge or otherwise apparent from the record are not valid, and exclusion of the evidence is prejudicial under Article 59(a), the conviction must be set aside; if there is uncertainty as to the reasons for the defense violation or as to the availability and impact of sanctions less restrictive than exclusion, it may be appropriate to remand the record for a DuBay hearing

Trial Stages: Merits: Argument

1. it is not appropriate in argument to suggest that a military judge’s decision to admit or exclude evidence, or to sustain an objection, itself amounts to a comment on the veracity of that evidence or witness, as trial counsel did in this case

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

1. where the military judge excluded defense evidence as a sanction for a discovery violation, the Court reviewed the military judge’s ruling to exclude evidence for an abuse of discretion; findings of fact were reviewed for clear error, and conclusions of law are reviewed de novo