U.S. v. Cooper, 58 M.J. 54

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

1. the standard of review on appeal for speedy trial issues is de novo
2. (a military judge’s finding of necessity under M.R.E. 611)(d)(3) is a question of fact that will not be reversed on appeal unless such finding is clearly erroneous or unsupported by the record; a military judge's application of M.R.E. 611(d) and Craig v. Maryland, 497 U.S. 836 (1990), is a question of law that we review de novo)
3. 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
4. whether the phrase "child of either" in M.R.E. 504(c)(2)(A) should be construed to include a de facto child is a question of law that we review de novo

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

1. the standard of review on appeal for speedy trial issues is de novo

Miscellaneous Matters: Speedy Trial: Article 10

1. the legal question whether the Government has used reasonable diligence in discharging its duty under Article 10 to take immediate steps to try an accused is reviewed de novo on appeal
2. the Article 10 duty imposed on the Government immediately to try an accused who is placed in pretrial confinement does not terminate simply because the accused is arraigned
3. by the time an accused is arraigned, a change in the speedy-trial landscape has taken place; this is because after arraignment, the power of the military judge to process the case increases, and the power of the Government to affect the case decreases; as a result, once an accused is arraigned, significant responsibility for ensuring the accused’s court-martial proceeds with reasonable dispatch rests with the military judge
4. although the speedy-trial landscape changes after arraignment, the mandate of Article 10 imposing an affirmative obligation of reasonable diligence upon the Government does not change; Article 10 provides greater protections for persons subject to the UCMJ than does the Sixth Amendment speedy trial right; those protections continue until the actual trial commences
5. while the role and control of the military judge after referral and arraignment are factors to consider in the legal analysis of whether the Government proceeded with reasonable diligence, the Government must itself move diligently to trial and the entire period up to trying the accused will be reviewed for reasonable diligence on the part of the Government; thus, although arraignment serves to protect an accused’s speedy-trial rights, Article 10 protections do not automatically cease upon arraignment
6. while Article 10 issues cannot be resolved simply by determining whether similar delays would have violated the Sixth Amendment under Barker v. Wingo, it is appropriate to consider those factors in determining whether a particular set of circumstances violates a servicemember’s speedy trial rights under Article 10