U.S. v. Mason, 59 M.J. 416

First Principles: Constitutional Matters: Due Process

1. we hold that the military judge erred in permitting trial counsel’s redirect examination of the DNA expert on the issue of whether either party had requested a retest; the Due Process Clause of the Fifth Amendment to the Constitution requires the Government to prove the defendant’s guilt beyond a reasonable doubt; therefore, the burden of proof to establish the guilt of the accused is upon the Government; in the case at bar, trial counsel’s question to the DNA expert of whether either party had requested a retest suggested that appellant may have been obligated to request a retest, and therefore obligated to prove his own innocence; in so doing, trial counsel improperly implied that the burden of proof had shifted to appellant, in violation of due process
2. we hold that the military judge’s permission of trial counsel’s improper redirect examination of the DNA expert was harmless beyond a reasonable doubt where the evidentiary strength of the DNA evidence in this case was overwhelming, where the military judge instructed the members that the burden of proof to establish the guilt of the accused beyond a reasonable doubt was on the government and never shifts to the accused to establish his innocence or to disprove those facts which are necessary to establish each element of any particular offense, and where the government counsel reiterated the proper burden of proof during his closing argument

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. nonconsensual extraction of blood from an individual may be made pursuant to a valid search authorization, supported by probable cause
2. probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched; a probable cause determination is precisely a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before a magistrate, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place
3. probable cause deals with probabilities; these are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act
4. in reviewing a probable cause determination, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed; importantly, a determination of probable cause by a neutral and detached magistrate is entitled to substantial deference; resolution of doubtful or marginal cases should be largely determined by the preference for warrants; close calls will be resolved in favor of sustaining the magistrate's decision; a grudging or negative attitude by reviewing courts towards warrants is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant
5. in reviewing a probable cause determination, courts should consider the information made known to the authorizing official at the time of his decision which must be considered in the light most favorable to the prevailing party; the magistrate could also consider information known to her personally; thus, the key inquiry is whether all the information presented in the affidavit or orally by a witness or known to the magistrate personally, considered cumulatively, was sufficient to show a fair probability that evidence of a crime would be found in the place to be searched; courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner
6. we hold that the magistrate had probable cause to issue the search authorization for appellant’s blood; the information based on which the magistrate issued the search authorization, considered cumulatively, supported a reasonable belief that evidence of a crime, in the form of DNA, would likely be found in appellant – who had the physical features and blood type of the rapist, who was known to have owned gloves similar to those left at the crime scene, who lived near the victim, and who was identified as the owner of a car seen near the crime site at the same time of day as the crime, albeit almost two months later, thus giving appellant perhaps an opportunity to have been at the scene that day
7. for an accused to receive a hearing, and therefore potential relief, on the grounds that information allegedly omitted from an affidavit would have extinguished probable cause had that information been included, the defense must demonstrate that the omissions were both intentional or reckless, and that their hypothetical inclusion would have prevented a finding of probable cause; indeed, even if a false statement or omission is included in an affidavit, the Fourth Amendment is not violated if the affidavit would still show probable cause after such falsehood or omission is redacted or corrected
8. in this case, appellant failed to meet his substantial burden to show that the information allegedly omitted from the affidavit would have extinguished probable cause had that information been included; even if the omitted information had been included in the affidavit, none of it would have prevented a finding of probable cause

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

1. this Court reviews for an abuse of discretion the military judge’s decision to admit a blood sample into evidence
2. a military judge’s finding of fact is binding on this Court unless it is shown to be clearly erroneous
3. for this Court to affirm despite an error of constitutional dimension, the error must be harmless beyond a reasonable doubt; the essential question is what effect the error had or reasonably may be taken to have had upon the court’s decision