U.S. v. Humpherys, 57 M.J. 83

Military Justice Personnel: Prosecution Function: Trial Counsel

1. (prior representation may lead to disqualification on either of two independent grounds: (1) an attorney may be disqualified if the current representation is adverse to a former client, and the prior representation of that client involved the same or a substantially related matter; and (2) an attorney may be disqualified if there is a reasonable probability that specific confidences from the prior representation may be used to the disadvantage of the former client. See Dep’t of the Army Reg. 27-26, Rules of Professional Conduct for Lawyers, Appendix B, Rule 1.9(a)(1) and (2); Dep’t of the Navy, JAG Instruction 5803.1B, Enclosure 1, Rule 1.9 (11 Feb. 2000; TJAG Policy Number 26, Air Force Rules of Professional Conduct, Attachment 1, Rule 1.9 (Feb. 4, 1998))
2. there is a three-pronged analysis to determine when former counsel is disqualified from prosecuting a subsequent case under the substantial relationship test: the accused carries the burden of demonstrating (1) the former representation; (2) a substantial relation between the subject matter of the former representation and the issues in the later action; and (3) the later adverse employment
3. the substantial relationship test does not require demonstration of specific confidences that might be used against the former client
4. the confidential information test does not require proof of a substantial relationship if, in fact, a client establishes that confidential information told to a lawyer during a former representation might be used against the client in the case at hand
5. under the confidential information test, the accused must demonstrate the specific confidences related during the prior representation and how they could be used to the disadvantage of the accused in the subsequent representation
6. military judges possess ample authority to protect the attorney-client relationship during consideration of disqualification motions, including the power to examine evidence in camera, seal records of any Article 39(a) sessions, exclude unnecessary persons from hearings, and issue protective orders
7. military judge’s denial of a motion to disqualify trial counsel is reviewed for an abuse of discretion
8. military judge did not abuse his discretion in ruling that appellant failed to demonstrate a substantial relationship between the earlier representation and the present case where appellant made only vague assertions during the pretrial hearing and failed to provide the necessary specificity to determine the commonality between the subject matter, causes of action, or issues in the two cases
9. appellant failed to carry the burden of establishing that the cross-examination of his wife by trial counsel was based upon specific confidential communications between himself and trial counsel during the prior representation; defense made only perfunctory assertions and declined the military judge’s offer to give defense an opportunity to present further evidence on the issue

Military Justice Personnel: Military Judge: General Powers

1. military judges possess ample authority to protect the attorney-client relationship during consideration of disqualification motions, including the power to examine evidence in camera, seal records of any Article 39(a) sessions, exclude unnecessary persons from hearings, and issue protective orders

Military Justice Personnel: Court Members: Generally

1. impartial court-members are a sine qua non for a fair court-martial, and voir dire is an important method for identifying a member whose impartiality might be questioned

Military Justice Personnel: Court Members: Challenges for Cause

1. when a panel member fails to disclose information during voir dire, the defendant must make two showings in order to receive a new trial: (1) that a panel member failed to answer honestly a material question on voir dire; and (2) that a correct response would have provided a valid basis for a challenge for cause
2. a senior-subordinate/rating relationship does not per se require disqualification of a panel member
3. the test for actual bias is subjective and asks whether any bias is such that it will not yield to the evidence presented and the judge's instructions
4. military judge is given great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member
5. on a question of actual bias, the judge’s findings on actual bias are reviewed for an abuse of discretion
6. as to actual bias, a full hearing made clear that superior did not improperly influence rated subordinate during deliberations, and that subordinate felt no threat or influence on him and his vote was his own
7. implied bias is reviewed objectively, reflecting a concern with public perception and the appearance of fairness in the military justice system, and exists when most people in the same position would be prejudiced
8. issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard
9. no member of the public would reasonably suspect the fairness of this trial where the record made clear that the relationship between superior and rated subordinate court members was entirely professional, did not involve any negative aspects between them, and would not hamper subordinate's independent thinking and fulfillment of his responsibility as a panel member

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. evidence was legally sufficient to uphold appellant’s conviction for violating a regulatory prohibition against soliciting non-professional relationships on a theory that appellant made inappropriate comments as a way of testing the reactions of trainees to determine if he could pursue a relationship with a particular trainee; that evidence included: (1) corroborated testimony that appellant made the remark; (2) the testimony of three female soldiers as evidence that the remark was made with a non-innocent intent, a predicate to initiating a prohibited relationship; (3) testimony of two female soldiers that appellant made inappropriate comments to them prior to adulterous affairs; and (4) testimony that appellant, on another occasion, improperly "caressed" a female trainee’s head under the guise of checking for a fever

Core Criminal Law Subjects: Evidence: Balancing

1. military judge has wide discretion in applying Mil.R.Evid 403, and Court of Appeals for the Armed Forces exercises great restraint in reviewing a military judge’s 403 ruling if his reasoning is articulated on the record; when the military judge fails to explain the grounds for denying a Rule 403 objection, his ruling is not entitled to such deference
2. although the military judge did not articulate his reasons for concluding that any prejudicial effect of the testimony did not substantially outweigh its probative value, Court of Appeals for the Armed Forces may determine that the record permits it to conduct the required balancing during appellate review

Core Criminal Law Subjects: Evidence: Character

1. Mil.R.Evid. 404(a)(1) allows the accused to present evidence of his good military character if that trait is pertinent to the charged offense; the rule also allows the government to present character evidence in rebuttal of the good-military-character evidence presented by the defense
2. extrinsic evidence of prior acts of misconduct is not admissible to rebut opinion evidence of good military character

Core Criminal Law Subjects: Evidence: Other Acts

1. Mil.R.Evid. 404(b) is a rule of inclusion, not exclusion; the sole test under Mil.R.Evid. 404(b) is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime
2. In addition to having a proper purpose under Mil.R.Evid. 404(b), proffered evidence must meet the standards of Mil.R.Evid. 104(b), 402, and 403
3. There is a three-pronged test for determining admissibility of other-acts evidence under Mil.R.Evid. 404(b), failure of the evidence under any one of which renders the evidence inadmissible: (1) whether the evidence reasonably supports a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; and (3) whether the probative value is substantially outweighed by the danger of unfair prejudice
4. Under the three-pronged analysis for determining admissibility of other-acts evidence under Mil.R.Evid. 404(b), the military judge did not abuse his discretion by admitting the challenged testimony concerning statements made to other female soldiers where: (1) there was more than sufficient evidence for the members to conclude that appellant made the statements in issue; (2) the evidence was relevant to a probable defense that the statement was made for an official purpose as well as being relevant to appellant’s intent in making the charged remark, a fact in issue and of consequence; and (3) the danger of unfair prejudice to appellant's interests did not substantially outweigh the probative value of the extrinsic-acts evidence in proving intent
5. extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct
6. extrinsic evidence of prior acts of misconduct is not admissible to rebut opinion evidence of good military character

Trial Stages: Merits: Trial Procedures › Voir dire

1. impartial court-members are a sine qua non for a fair court-martial, and voir dire is an important method for identifying a member whose impartiality might be questioned
2. When a panel member fails to disclose information during voir dire, the defendant must make two showings in order to receive a new trial: (1) that a panel member failed to answer honestly a material question on voir dire; and (2) that a correct response would have provided a valid basis for a challenge for cause
3. an evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding a panel member’s failure to disclose information during voir dire; the hearing enables the military judge to investigate and resolve allegations, by interviewing the challenged panel members, while the details of trial are still fresh in the minds of all participants, so that the judge can assess first-hand the demeanor of the panel members as they respond to questioning from the bench and counsel

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. an evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding a panel member’s failure to disclose information during voir dire; the hearing enables the military judge to investigate and resolve allegations, by interviewing the challenged panel members, while the details of trial are still fresh in the minds of all participants, so that the judge can assess first-hand the demeanor of the panel members as they respond to questioning from the bench and counsel

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. although the military judge did not articulate his reasons for concluding that any prejudicial effect of the testimony did not substantially outweigh its probative value, Court of Appeals for the Armed Forces may determine that the record permits it to conduct the required balancing during appellate review

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an evidentiary error may be harmless when evidence of the guilt of the accused is overwhelming

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

1. test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt
2. on a question of actual bias, the judge’s findings on actual bias are reviewed for an abuse of discretion
3. issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard
4. military judge’s decision to admit evidence is reviewed for an abuse of discretion; the judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
5. military judge’s denial of a motion to disqualify trial counsel is reviewed for an abuse of discretion
6. a military judge’s ruling on a petition for a new trial for is reviewed for abuse of discretion

Trial Stages: Petition for a New Trial: Generally

1. petitions for a new trial are generally disfavored, and a decision on a petition for a new trial rests within the sound discretion of the authority considering that petition
2. a military judge’s ruling on a petition for a new trial for is reviewed for abuse of discretion
3. the military judge did not abuse his discretion in ruling that appellant was not entitled to a new trial for panel members’ failure to disclose information about a superior/subordinate relationship where a full evidentiary hearing on the record made clear that the relationship between superior and rated subordinate was entirely professional, did not involve any negative aspects between them, and would not hamper subordinate's independent thinking and fulfillment of his responsibility as a panel member
4. military judge did not abuse his discretion in ruling that appellant was not entitled to a new trial based upon panel member’s failure to disclose information about a superior/subordinate relationship during voir dire where accurate responses by these members would not have provided a valid basis for a challenge for cause against either or both

Miscellaneous Matters: Professional Responsibility / Ethics: Conflicts of Interest

1. an attorney has an ethical duty to identify conflicts of interest concerning the attorney’s representation of a client and to take appropriate steps to decline or terminate representation when required by applicable rules, regardless of whether a party-litigant has filed a motion to disqualify the attorney