U.S. v. Washington, 63 M.J. 418

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. an Article 120(b), UCMJ, violation for carnal knowledge requires: (1) that the accused commit an act of sexual intercourse; (2) with a person who is not the accused’s spouse; and (3) who is under sixteen years old; penetration, however slight, is sufficient to complete the offense
2. there was sufficient evidence of penetration to support appellant’s conviction of carnal knowledge of his daughter where the mother testified that she found appellant naked in bed spooning her daughter with a partial erection, where daughter testified about acts of vaginal penetration prior to the date in question, and where reasonable trier of fact could infer that the word “also” in trial counsel’s question to the daughter asking whether appellant had “also” put his private part inside her before that date was inclusive and meant that acts of penetration occurred not only before that date, but also on that date

Core Criminal Law Subjects: Evidence: Other Acts

1. although the members found appellant not guilty of carnal knowledge with his daughter on divers occasions before the date of the offense of carnal knowledge with his daughter for which he was convicted, the lower court did not err in relying on the evidence regarding those earlier divers acts in upholding the factual and legal sufficiency of his conviction where the members could reasonably have found by a preponderance of the evidence that the prior acts occurred, the evidence that appellant may have earlier engaged in nearly identical acts was relevant to whether he engaged in similar conduct on the later date, and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice
2. the admissibility of other acts evidence is governed by the Military Rules of Evidence, and not by the members’ verdict; a finding of not guilty is not a finding of fact, but a determination that the government has not proved all the elements of the charged offense beyond a reasonable doubt
3. with respect to other acts evidence involving child molestation and sexual assault, MRE 413 and MRE 414 are intended to provide for more liberal admissibility of character evidence in criminal cases
4. before a court-martial may submit evidence of prior charged or uncharged acts to the members, it must examine the evidence in the case and decide whether the members could reasonably find the conditional fact by a preponderance of the evidence; the three-prong test of United States v. Reynolds, 29 MJ 105 (CMA 1989), for the admissibility of uncharged misconduct can apply to evidence of charged misconduct; the test contains the following elements: (1) Does the evidence reasonably support a finding by the court members that the appellant committed prior crimes, wrongs or acts?; (2) What fact of consequence is made more or less probable by the existence of this evidence?; (3) Is the probative value substantially outweighed by the danger of unfair prejudice?

Core Criminal Law Subjects: Evidence: Relevance

1. evidence is relevant under MRE 401 when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. with respect to other acts evidence involving child molestation and sexual assault, MRE 413 and MRE 414 are intended to provide for more liberal admissibility of character evidence in criminal cases; specifically, MRE 414(a) provides that in a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. before a court-martial may submit evidence of prior charged or uncharged acts to the members, it must examine the evidence in the case and decide whether the members could reasonably find the conditional fact by a preponderance of the evidence; the three-prong test of United States v. Reynolds, 29 MJ 105 (CMA 1989), for the admissibility of uncharged misconduct can apply to evidence of charged misconduct; the test contains the following elements: (1) Does the evidence reasonably support a finding by the court members that the appellant committed prior crimes, wrongs or acts?; (2) What fact of consequence is made more or less probable by the existence of this evidence?; (3) Is the probative value substantially outweighed by the danger of unfair prejudice?

Core Criminal Law Subjects: Witnesses: Child Witness

1. MRE 603 is designed to afford the flexibility required in dealing with children, and affirmation is simply a solemn undertaking to tell the truth; MRE 603 requires no special verbal formula, but instead requires that the oath be meaningful to the witness, including a child witness, and impress upon the witness the duty to tell the truth
2. the law is clear, both in the text of MRE 603 and its analysis, and in federal circuit case law, that a particular formula is not required in administering an oath or affirmation, although adherence to the benchbook formula will minimize dispute; this is particularly true in the case of children, where oaths and affirmations may be specially tailored to impress on the particular child the importance of telling the truth; this can be accomplished, as it has been accomplished for many years, without imparting to the child the perils of perjury
3. the failure to administer the oath before a child witness’s testimony was error, and the error was obvious; the plain text of MRE 603 required the child witness, by oath or affirmation, to declare that she would testify truthfully before testifying; the initial colloquy between the child witness and trial counsel fell short of this requirement; however, appellant’s plain error claim fails because he cannot show he was materially prejudiced by the error where the trial counsel asked if the child witness knew the difference between the truth and a lie, and she indicated that she understood, where at the end of her testimony, the child witness stated that she had told the whole truth and nothing but the truth, where she then swore that everything she said had been the truth, and where after the child witness was recalled, she also stated that she had told the truth the previous day; although the colloquy between the trial counsel and the child witness was not a formal oath or affirmation, the witness demonstrated that she understood her duty to tell the truth; in short, consistent with the purpose of MRE 603, but not its temporal requirement, the record of trial reveals that the child witness was alert to the necessity of telling the truth both at the beginning of her testimony and at the outset of the second day of her testimony

Core Criminal Law Subjects: Witnesses: Oaths

1. MRE 603 provides that before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so; MRE 603 also requires that a witness swear or affirm that he will tell the truth, but it establishes no specific colloquy to be used in carrying out this requirement; any process that is sufficient to awaken the witness’s conscience is satisfactory
2. MRE 603 is designed to afford the flexibility required in dealing with children, and affirmation is simply a solemn undertaking to tell the truth; MRE 603 requires no special verbal formula, but instead requires that the oath be meaningful to the witness, including a child witness, and impress upon the witness the duty to tell the truth
3. the law is clear, both in the text of MRE 603 and its analysis, and in federal circuit case law, that a particular formula is not required in administering an oath or affirmation, although adherence to the benchbook formula will minimize dispute; this is particularly true in the case of children, where oaths and affirmations may be specially tailored to impress on the particular child the importance of telling the truth; this can be accomplished, as it has been accomplished for many years, without imparting to the child the perils of perjury
4. the failure to administer the oath before a child witness’s testimony was error, and the error was obvious; the plain text of MRE 603 required the child witness, by oath or affirmation, to declare that she would testify truthfully before testifying; the initial colloquy between the child witness and trial counsel fell short of this requirement; however, appellant’s plain error claim fails because he cannot show he was materially prejudiced by the error where the trial counsel asked if the child witness knew the difference between the truth and a lie, and she indicated that she understood, where at the end of her testimony, the child witness stated that she had told the whole truth and nothing but the truth, where she then swore that everything she said had been the truth, and where after the child witness was recalled, she also stated that she had told the truth the previous day; although the colloquy between the trial counsel and the child witness was not a formal oath or affirmation, the witness demonstrated that she understood her duty to tell the truth; in short, consistent with the purpose of MRE 603, but not its temporal requirement, the record of trial reveals that the child witness was alert to the necessity of telling the truth both at the beginning of her testimony and at the outset of the second day of her testimony

Trial Stages: Merits: Trial Procedures › Oaths

1. MRE 603 provides that before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so; MRE 603 also requires that a witness swear or affirm that he will tell the truth, but it establishes no specific colloquy to be used in carrying out this requirement; any process that is sufficient to awaken the witness’s conscience is satisfactory
2. MRE 603 is designed to afford the flexibility required in dealing with children, and affirmation is simply a solemn undertaking to tell the truth; MRE 603 requires no special verbal formula, but instead requires that the oath be meaningful to the witness, including a child witness, and impress upon the witness the duty to tell the truth
3. the law is clear, both in the text of MRE 603 and its analysis, and in federal circuit case law, that a particular formula is not required in administering an oath or affirmation, although adherence to the benchbook formula will minimize dispute; this is particularly true in the case of children, where oaths and affirmations may be specially tailored to impress on the particular child the importance of telling the truth; this can be accomplished, as it has been accomplished for many years, without imparting to the child the perils of perjury
4. the failure to administer the oath before a child witness’s testimony was error, and the error was obvious; the plain text of MRE 603 required the child witness, by oath or affirmation, to declare that she would testify truthfully before testifying; the initial colloquy between the child witness and trial counsel fell short of this requirement; however, appellant’s plain error claim fails because he cannot show he was materially prejudiced by the error where the trial counsel asked if the child witness knew the difference between the truth and a lie, and she indicated that she understood, where at the end of her testimony, the child witness stated that she had told the whole truth and nothing but the truth, where she then swore that everything she said had been the truth, and where after the child witness was recalled, she also stated that she had told the truth the previous day; although the colloquy between the trial counsel and the child witness was not a formal oath or affirmation, the witness demonstrated that she understood her duty to tell the truth; in short, consistent with the purpose of MRE 603, but not its temporal requirement, the record of trial reveals that the child witness was alert to the necessity of telling the truth both at the beginning of her testimony and at the outset of the second day of her testimony

Trial Stages: Appeals: Preservation of Error / Plain Error

1. under a plain error analysis, appellant must show that there was error, the error was plain or obvious, and that the error materially prejudiced his substantial rights
2. the failure to administer the oath before a child witness’s testimony was error, and the error was obvious; the plain text of MRE 603 required the child witness, by oath or affirmation, to declare that she would testify truthfully before testifying; the initial colloquy between the child witness and trial counsel fell short of this requirement; however, appellant’s plain error claim fails because he cannot show he was materially prejudiced by the error where the trial counsel asked if the child witness knew the difference between the truth and a lie, and she indicated that she understood, where at the end of her testimony, the child witness stated that she had told the whole truth and nothing but the truth, where she then swore that everything she said had been the truth, and where after the child witness was recalled, she also stated that she had told the truth the previous day; although the colloquy between the trial counsel and the child witness was not a formal oath or affirmation, the witness demonstrated that she understood her duty to tell the truth; in short, consistent with the purpose of MRE 603, but not its temporal requirement, the record of trial reveals that the child witness was alert to the necessity of telling the truth both at the beginning of her testimony and at the outset of the second day of her testimony

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

1. when determining whether the evidence was legally sufficient to support a conviction, 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 the crime beyond a reasonable doubt

Trial Stages: Appeals: Waiver

1. where appellant did not object to the failure of trial counsel to place a witness under oath, appellant waived the issue absent plain error; in this context, the rationale for applying waiver is twofold: first, the defect or failure could have been corrected if a timely objection had been made; second, in the absence of a waiver rule, counsel might deliberately avoid objecting to a witness being unsworn in order to have a ground of appeal