U.S. v. McCollum, 58 M.J. 323

First Principles: Constitutional Matters: Confrontation

1. the Confrontation Clause of the Sixth Amendment guarantees that in all prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the Supreme Court has explained that this right contains not only a right to a personal examination, but also (1) insures that the witness will give his statements under oath - thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for discovery of the truth; and (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility; although each of these protections serves to ensure the reliability of the evidence against a criminal defendant, the Court has stressed that an accused’s right to physical, face-to-face confrontation with witnesses against him forms the core of the Confrontation Clause
2. despite the Confrontation Clause’s emphasis on physical, face-to-face confrontation, it is not an absolute right; a defendant’s right to confront accusatory witnesses may be satisfied absent physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured; therefore, a witness may testify out of an accused’s presence only where the trial court finds (1) that there is an important public interest that will be served by denying physical confrontation, (2) that such denial is necessary to further that interest, and (3) that other measures will ensure the reliability of the testimony
3. the Sixth Amendment does not require a military judge, as a matter of course, to interview or observe a child witness prior to allowing the child to testify outside of an accused’s presence
4. the military judge did not violate appellant’s Sixth Amendment right to confront a witness against him by allowing a child witness to testify outside of appellant's presence where the military judge's findings supported the conclusion that the witness would have been unable to testify in appellant’s presence under M.R.E. 611(d)(3)(A) because of the witness's fear of appellant (and under M.R.E. 611(d)(3)(B) because of the trauma caused by his presence) and where the procedure implemented by the military judge properly protected other aspects of appellant’s right to confrontation; the military judge ensured that appellant was able to communicate with his counsel at all times during the witness's testimony; the military judge also required the witness to testify in court, under oath, and in the presence of the fact-finder; and finally, appellant’s counsel was able to cross-examine the witness; these protections were sufficient to ensure the reliability of the witness's testimony despite appellant’s absence

Core Criminal Law Subjects: Evidence: Privileges › Husband-wife privilege

1. (courts have long held, either as a matter of statutory or common law, that confidential communications between a husband and wife made during a valid marriage are privileged and cannot be used as evidence in court, absent waiver; in military law, the marital communications privilege is contained in M.R.E. 504(b)(1)); that provision provides in relevant part that a person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law)
2. the requisite elements of a privileged communication under M.R.E. 504(b)(1) are: (1) there must be a communication; (2) the communication must have been intended to be confidential; and (3) it must have been made between married persons not separated at the time of the communication
3. a communication is confidential if there is (1) physical privacy between the individuals, and (2) an intent to maintain secrecy
4. M.R.E. 510(a) states that a person waives a privilege where he or she voluntarily discloses or consents to disclosure of any significant part of the matter or communication under circumstances that it would be inappropriate to allow the claim of privilege; voluntary disclosure applies only where the speaker elects to share a substantial portion of a privileged communication with a party outside of the privileged relationship
5. voluntary consent to disclose privileged marital communications is given where one spouse either expressly or implicitly authorizes the other to share information with a third party; courts have regularly held that the unauthorized disclosure of privileged information by one spouse does not constitute waiver of the marital privilege; in such cases, the nondisclosing spouse can still assert the privilege and prevent the use of the confidential information in a legal proceeding
6. at issue in this case is the exception to the marital privilege rule contained in M.R.E. 504(c)(2)(A), which applies to proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either; the question is whether at "child of either" should be read to include a "de facto" child, or a child who is under the care or custody of one of the spouses, regardless of the existence of a formal legal parent-child relationship; we think the better view is that "child of either," as used in M.R.E. 504(c)(2)(A), applies to only those situations in which a child is the biological child of one of the spouses, the legally recognized child, or ward of one of the spouses
7. based on the text of the rule, and in light of the rules of evidence generally recognized in the federal courts, we conclude that there is not a de facto child exception to the marital communications privilege of M.R.E. 504(c)(2)(A)

Core Criminal Law Subjects: Witnesses: Child Witness

1. if the Government makes an adequate showing of necessity, the Government interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant; the showing of necessity must not be a generalized one; the trial judge must make a case-specific finding that testimony outside the presence of the accused is necessary to protect the welfare of the particular child who seeks to testify; moreover, denial of face-to-face confrontation is only necessary to protect a child witness from trauma where it is the presence of the defendant that causes the trauma; finally, before a court denies an accused the right to confront a witness face-to-face, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify
2. M.R.E. 611(d)(3) authorizes remote live testimony where the military judge makes a finding on the record that a child is unable to testify in open court in the presence of the accused, for any of the following reasons: (A) The child is unable to testify because of fear; (B) There is substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying; (C) The child suffers from a mental or other infirmity; or (D) Conduct by an accused or defense counsel causes the child to be unable to continue testifying
3. M.R.E. 611(d)(3) authorizes the use of remote live testimony where the military judge makes a finding on the record that a child is unable to testify in open court in the presence of the accused; we interpret this language as limiting the use of remote live testimony to situations where the military judge makes a finding that the child witness would suffer more than de minimis emotional distress from testifying in the accused’s presence, whether brought on by fear or some form of trauma; in other words, under M.R.E. 611(d)(3), such distress must be sufficiently serious that it would prevent the child from reasonably testifying
4. while the finding of necessity under M.R.E. 611(d)(3) must be based on trauma resulting from the accused’s presence and not the overall court experience, that finding need not require that a child’s trauma derive solely from the presence of the accused; judges are simply prohibited from considering trauma resulting from sources other than the accused in making a finding of necessity; so long as the finding is based on the fear or trauma caused by the accused’s presence alone, it is irrelevant whether the child witness would also suffer some fear or trauma from testifying generally
5. M.R.E. 611(d) does not require a military judge to interview a child witness before ruling on a motion for remote live testimony; the language of M.R.E. 611(d) requires a "finding on the record," without any specific evidentiary prerequisites; while it may be appropriate, and even necessary, in some circumstances for a military judge to question or observe a child witness before ruling that he or she may testify outside of an accused’s presence, such action is not required per se; rather, a proper finding may be based on unrebutted expert testimony alone, if such testimony provides the military judge with sufficient information
6. M.R.E. 611(d)(3)(A) does not require a finding that a child fear imminent harm from the accused; nor does the rule require that the fear be reasonable; it provides that the fear of the accused be of such a nature that it prevents the child from being able to testify in the accused’s presence

Core Criminal Law Subjects: Witnesses: Confrontation

1. if the Government makes an adequate showing of necessity, the Government interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant; the showing of necessity must not be a generalized one; the trial judge must make a case-specific finding that testimony outside the presence of the accused is necessary to protect the welfare of the particular child who seeks to testify; moreover, denial of face-to-face confrontation is only necessary to protect a child witness from trauma where it is the presence of the defendant that causes the trauma; finally, before a court denies an accused the right to confront a witness face-to-face, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify
2. M.R.E. 611(d)(3) authorizes remote live testimony where the military judge makes a finding on the record that a child is unable to testify in open court in the presence of the accused, for any of the following reasons: (A) The child is unable to testify because of fear; (B) There is substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying; (C) The child suffers from a mental or other infirmity; or (D) Conduct by an accused or defense counsel causes the child to be unable to continue testifying

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Marital privilege

1. the burden of establishing that a marital communication is privileged under M.R.E. 504(b)(1) is on the party asserting the privilege; the party asserting the privilege must establish its applicability by a preponderance of the evidence

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

1. marital communications are presumptively confidential; therefore, once the party asserting the marital communications privilege establishes the existence of a private communication between spouses who are not separated, the burden of production shifts to the opposing party to overcome the presumption of confidentiality
2. even though marital communications are presumed to be confidential, several factors are relevant in determining whether that presumption has been overcome: (1) the nature of the circumstances; (2) the substance of the communication; (3) the existence or nonexistence of an expressed timeline or particular plan for disclosure; and (4) whether the statement is actually shared with a third party

Trial Stages: Appeals: Harmless / Prejudicial Error

1. whether an error, constitutional or otherwise, was harmless is a question of law that we review de novo; the Government has the burden of persuading us that a constitutional error is harmless beyond a reasonable doubt; for nonconstitutional errors, the Government must demonstrate that the error did not have a substantial influence on the findings
2. the erroneous admission of privileged marital communications constitutes nonconstitutional error for purposes of harmless error analysis
3. in determining the prejudice resulting from the erroneous admission of evidence, we weigh (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question

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

1. whether an error, constitutional or otherwise, was harmless is a question of law that we review de novo; the Government has the burden of persuading us that a constitutional error is harmless beyond a reasonable doubt; for nonconstitutional errors, the Government must demonstrate that the error did not have a substantial influence on the findings
2. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; whether a marital communication is privileged is a mixed question of fact and law; we review a lower court’s legal conclusions de novo, but we give a lower court’s factual findings more deference, and will not reverse such findings unless they are clearly erroneous

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

1. in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage