U.S. v. Rodriguez-Rivera, 63 M.J. 372

Military Justice Personnel: Prosecution Function: Misconduct

1. prosecutorial misconduct is generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon
2. in analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness
3. there may be a case, based upon the dialogue between the parties and the military judge, where there is a sound basis in the record for concluding that there was a clear, common understanding between the military judge and the parties as to sequestration, without issuance of a formal order; in such a case, violating that clear understanding could constitute prosecutorial misconduct; in this case, there was neither a formal nor a clearly understood sequestration order, and a sequestration order could not be implied based on the judge’s denial of the government’s request to allow one or both of the parents to be present when the child testified; unless the record demonstrates that witnesses were to be sequestrated, the prosecution cannot be found to have intentionally committed misconduct; as a result, there was no prosecutorial misconduct based on an allegation that the trial counsel intentionally violated the military judge’s sequestration order by allowing the parents of the child to discuss the substance of the child’s testimony during a recess
4. there was no prosecutorial misconduct based on an allegation that the child victim was improperly coached by the trial counsel, the assistant trial counsel, and the child’s parents during a recess in the child’s testimony, where the trial counsel and parents did nothing more that encourage the child to tell the truth and the whole story; to the extent the military judge did have concerns about any influence the discussion during the recess may have had on the child, he mitigated that influence by allowing cross-examination of the child concerning the events during the recess and the possibility that the child was coached or coerced
5. there was no prosecutorial misconduct arising from an allegation that the assistant trial counsel was less than candid about the discussions that occurred between him and a child witness during the recess, where a difference in perception between the assistant trial counsel and a child witness about their discussions was not a sufficient basis for finding that the assistant trial counsel was dishonest with the military judge
6. there was no prosecutorial misconduct arising from an allegation that a government expert witness had listened to other witnesses and collaborated with the government by passing notes to the trial counsel during the trial, where the trial counsel advised the military judge that the notes the witness had passed were not written by her, but that the witness was merely relaying notes passed to the trial counsel from other people; the military judge accepted the trial counsel’s explanation, after having had the opportunity to observe the proceedings and the explanation of the trial counsel; thus, there is no basis in the record to conclude that the military judge’s finding that the trial counsel was candid with regard to this incident was clearly erroneous

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. there is no basis for application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause on court members

Military Justice Personnel: Court Members: Challenges for Cause

1. there is no basis for application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause on court members
2. if a potential member states he would require the government to produce more evidence than the testimony of one witness in order to find any element beyond a reasonable doubt, then he is holding the government to a higher standard than the law requires and should not be allowed to sit on the panel
3. the military judge did not abuse his discretion in granting the government’s challenge for cause against a member who indicated during voir dire that he would want a little bit more than just the testimony of one witness in order to conclude that the government had met its burden in a child sexual abuse case

Military Justice Personnel: Convening Authority: Action

1. RCM 1107(b)(3)(A) requires that prior to taking action on a court-martial sentence, a convening authority must consider the results of trial, the recommendation of the staff judge advocate, and any clemency submission from the accused; RCM 1107(b)(3)(B)(iii) further provides that the convening authority may also consider additional matters that he deems appropriate, but if the convening authority considers matters adverse to the accused from outside the record, with knowledge of which the accused is not chargeable, the accused shall be notified and given the opportunity to rebut

Core Criminal Law Subjects: Crimes: Article 134 - Indecent Acts or Liberties with a Child Pre-2019 offenses

1. when a person is charged with taking indecent liberties, the liberties must be taken in the physical presence of the child; in this case, the evidence was legally insufficient to sustain appellant’s conviction for taking indecent liberties with a child by watching pornographic movies with her; although there was evidence to establish that the child watched a pornographic movie at appellant’s house, she never testified that appellant was physically present when she did so; thus, there was no evidence that could lead a reasonable member to conclude that appellant watched a pornographic movie “with” the child

Core Criminal Law Subjects: Evidence: Hearsay › Medical exception

1. MRE 803(4) provides an exception to the general hearsay rule and allows the admission of statements made for the purpose of medical diagnosis or treatment; statements which are offered as exceptions to hearsay under MRE 803(4) must satisfy two conditions: first the statements must be made for the purposes of medical diagnosis or treatment; and second, the patient must make the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought
2. the referral of a victim to a medical professional by trial counsel is not a critical factor in deciding whether the medical exception applies to the statements that the victim gave to those treating her; the critical question is whether she had some expectation of treatment when she talked to the caregivers
3. the military judge did not abuse his discretion in admitting statements made by a child sexual abuse victim to a pediatrician under the medical exception to the hearsay rule of MRE 803(4), where that decision was based upon the not-clearly-erroneous findings that the pediatrician saw the child for the purpose of medical diagnosis and treatment, and that the child expected to receive medical treatment when she saw the pediatrician

Core Criminal Law Subjects: Witnesses: Child Witness

1. as a general matter, appellate courts have permitted greater latitude and flexibility when it comes to treatment and testimony of child witnesses

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

1. the burden at trial is on the government to prove every element of the offenses charged beyond a reasonable doubt; the testimony of only one witness may be enough to meet this burden so long as the members find that the witness’s testimony is relevant and is sufficiently credible

Trial Stages: Initial Review: Action

1. RCM 1107(b)(3)(A) requires that prior to taking action on a court-martial sentence, a convening authority must consider the results of trial, the recommendation of the staff judge advocate, and any clemency submission from the accused; RCM 1107(b)(3)(B)(iii) further provides that the convening authority may also consider additional matters that he deems appropriate, but if the convening authority considers matters adverse to the accused from outside the record, with knowledge of which the accused is not chargeable, the accused shall be notified and given the opportunity to rebut

Trial Stages: Appeals: Harmless / Prejudicial Error

1. whether or not there was error in failing to serve trial counsel’s comments on appellant’s clemency request upon the defense, appellant failed to sustain his burden of making a colorable show of prejudice where appellant’s assertions regarding his proposed rebuttal to trial counsel’s statements were inaccurate;
2. as a general matter, an appellate court can dispose of an issue by assuming error and proceeding directly to the conclusion that any error was harmless; similarly, issues involving possible constitutional error can be resolved by assuming error and concluding that the error is harmless beyond a reasonable doubt
3. in cases involving claims that appellant has been denied his due process right to speedy post-trial review and appeal, an appellate court may look initially to whether the denial of due process, if any, is harmless beyond a reasonable doubt; an appellate court will apply a similar analysis where, even though the denial of due process cannot be said to be harmless beyond a reasonable doubt, there is no reasonable, meaningful relief available

Trial Stages: Appeals: Remedies › Generally

1. even assuming that the delay of over six years to complete appellant’s appeal of right denied him his right to speedy review and appeal, no additional relief is appropriate or warranted where appellant had served his full term of confinement and reduction of adjudged forfeitures would have no meaningful effect in light of the provisions for automatic forfeitures; in addition, reducing the period of confinement enough to have a significant impact upon collected forfeitures would also require a dramatic reduction in the period of confinement that is unwarranted under the circumstances of this case; to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay

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

1. in analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness
2. where the military judge and the lower court have made factual determinations regarding the events surrounding allegations of misconduct, the CAAF will accept those determinations unless they are clearly erroneous
3. if prosecutorial misconduct is found, an appellate court will examine the record as a whole to determine whether appellant was prejudiced by the misconduct
4. an appellate court weighs three factors in evaluating the impact of prosecutorial misconduct on a trial: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the weight of the evidence supporting the conviction
5. as a general matter, appellate courts have permitted greater latitude and flexibility when it comes to treatment and testimony of child witnesses
6. a military judge’s decision to admit hearsay-exception evidence is reviewed by an appellate court for an abuse of discretion
7. in evaluating a military judge’s ruling on a challenge for cause, an appellate court finds it appropriate to recognize the military judge’s superior position to evaluate the demeanor of court members; it will not, therefore, reverse a military judge’s ruling on a challenge for cause absent a clear abuse of discretion
8. where matters adverse to the accused from outside the record have been erroneously considered by the convening authority, an appellate court will require appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; the prejudicial threshold is low, and if appellant makes some colorable showing of possible prejudice, an appellate court will give that appellant the benefit of the doubt and will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment
9. in determining whether the evidence is legally sufficient, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt
10. if an appellate court concludes that appellant has been denied the due process right to speedy post-trial review and appeal, it will grant relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless
11. whether appellant has been denied the due process right to a speedy post-trial review and appeal, and whether constitutional error is harmless beyond a reasonable doubt are reviewed by an appellate court de novo
12. as a general matter, an appellate court can dispose of an issue by assuming error and proceeding directly to the conclusion that any error was harmless; similarly, issues involving possible constitutional error can be resolved by assuming error and concluding that the error is harmless beyond a reasonable doubt
13. in cases involving claims that appellant has been denied his due process right to speedy post-trial review and appeal, an appellate court may look initially to whether the denial of due process, if any, is harmless beyond a reasonable doubt; an appellate court will apply a similar analysis where, even though the denial of due process cannot be said to be harmless beyond a reasonable doubt, there is no reasonable, meaningful relief available
14. an appellate court applies a de novo standard of review to the question of harmlessness beyond a reasonable doubt

Miscellaneous Matters: Speedy Trial: Post-Trial

1. in analyzing whether appellate delay has violated the due process rights of an accused, an appellate court first looks at whether the delay in question is facially unreasonable; if it is, then it examines and balances the four factors set forth in Barker v. Wingo: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice
2. if an appellate court concludes that appellant has been denied the due process right to speedy post-trial review and appeal, it will grant relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless
3. in cases involving claims that appellant has been denied his due process right to speedy post-trial review and appeal, an appellate court may look initially to whether the denial of due process, if any, is harmless beyond a reasonable doubt; an appellate court will apply a similar analysis where, even though the denial of due process cannot be said to be harmless beyond a reasonable doubt, there is no reasonable, meaningful relief available
4. even assuming that the delay of over six years to complete appellant’s appeal of right denied him his right to speedy review and appeal, no additional relief is appropriate or warranted where appellant had served his full term of confinement and reduction of adjudged forfeitures would have no meaningful effect in light of the provisions for automatic forfeitures; in addition, reducing the period of confinement enough to have a significant impact upon collected forfeitures would also require a dramatic reduction in the period of confinement that is unwarranted under the circumstances of this case; to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay

Miscellaneous Matters: Professional Responsibility / Ethics: Generally

1. prosecutorial misconduct is generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon
2. in analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness
3. there may be a case, based upon the dialogue between the parties and the military judge, where there is a sound basis in the record for concluding that there was a clear, common understanding between the military judge and the parties as to sequestration, without issuance of a formal order; in such a case, violating that clear understanding could constitute prosecutorial misconduct; in this case, there was neither a formal nor a clearly understood sequestration order, and a sequestration order could not be implied based on the judge’s denial of the government’s request to allow one or both of the parents to be present when the child testified; unless the record demonstrates that witnesses were to be sequestrated, the prosecution cannot be found to have intentionally committed misconduct; as a result, there was no prosecutorial misconduct based on an allegation that the trial counsel intentionally violated the military judge’s sequestration order by allowing the parents of the child to discuss the substance of the child’s testimony during a recess
4. there was no prosecutorial misconduct based on an allegation that the child victim was improperly coached by the trial counsel, the assistant trial counsel, and the child’s parents during a recess in the child’s testimony, where the trial counsel and parents did nothing more that encourage the child to tell the truth and the whole story; to the extent the military judge did have concerns about any influence the discussion during the recess may have had on the child, he mitigated that influence by allowing cross-examination of the child concerning the events during the recess and the possibility that the child was coached or coerced
5. there was no prosecutorial misconduct arising from an allegation that the assistant trial counsel was less than candid about the discussions that occurred between him and a child witness during the recess, where a difference in perception between the assistant trial counsel and a child witness about their discussions was not a sufficient basis for finding that the assistant trial counsel was dishonest with the military judge
6. there was no prosecutorial misconduct arising from an allegation that a government expert witness had listened to other witnesses and collaborated with the government by passing notes to the trial counsel during the trial, where the trial counsel advised the military judge that the notes the witness had passed were not written by her, but that the witness was merely relaying notes passed to the trial counsel from other people; the military judge accepted the trial counsel’s explanation, after having had the opportunity to observe the proceedings and the explanation of the trial counsel; thus, there is no basis to conclude that the military judge’s finding that the trial counsel was candid with regard to this incident was clearly erroneous