U.S. v. Davis, 64 M.J. 445

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

1. a military judge errs by requiring a showing of prejudice as a precondition to providing a remedy for a violation of an accused’s rights at an Article 32 proceeding
2. as a general matter, an accused is required to identify and object to any errors in the Article 32 proceeding at the outset of the court-martial, prior to trial on the merits; when an accused makes an objection at that stage, the impact of an Article 32 violation on the trial is likely to be speculative at best; the time for correction of such an error is when the military judge can fashion an appropriate remedy under RCM 906(b)(3) before it infects the trial, not after the members, witnesses, and parties have borne the burden of trial proceedings; in the event that an accused disagrees with the military judge’s ruling, the accused may file a petition for extraordinary relief to address immediately the Article 32 error

Trial Stages: Pretrial: Investigations (Article 32)

1. a formal pretrial investigation is a predicate to the referral of charges to a general court-martial unless the accused waives the pretrial proceeding; the procedures for an Article 32 hearing include representation of the accused by counsel, the right to present evidence, and the right to call and cross-examine witnesses
2. a military accused is entitled to a public Article 32 hearing absent cause shown that outweighs the value of openness
3. RCM 405(h)(3) vests the authority to close an Article 32 hearing in the commander who ordered the investigation; a command decision to close an Article 32 hearing must be made on a case-by-case, witness-by-witness, and circumstance-by-circumstance basis
4. a military judge errs by requiring a showing of prejudice as a precondition to providing a remedy for a violation of an accused’s rights at an Article 32 proceeding
5. as a general matter, an accused is required to identify and object to any errors in the Article 32 proceeding at the outset of the court-martial, prior to trial on the merits; when an accused makes an objection at that stage, the impact of an Article 32 violation on the trial is likely to be speculative at best; the time for correction of such an error is when the military judge can fashion an appropriate remedy under RCM 906(b)(3) before it infects the trial, not after the members, witnesses, and parties have borne the burden of trial proceedings; in the event that an accused disagrees with the military judge’s ruling, the accused may file a petition for extraordinary relief to address immediately the Article 32 error
6. although the Article 32 investigation is an important element of the military justice process, it is not part of the court-martial; an Article 32 investigation takes place before the convening authority’s decision to refer a case for trial by general court-martial; a case may be referred to trial by special court-martial without conducting an Article 32 investigation, even though a special court-martial can result in the stigma of a punitive discharge and confinement for up to one year; in light of those considerations, the Article 32 investigation is not so integral to a fair trial that an error in the proceeding necessarily falls within the narrow class of defects treated by the Supreme Court as structural error subject to reversal without testing for prejudice

Trial Stages: Appeals: Harmless / Prejudicial Error

1. although a military judge erred in improperly closing a portion of an Article 32 proceeding during the testimony of two alleged victims of sexual offenses, the error was harmless beyond a reasonable doubt where (1) the defense counsel had access to written statements by the witnesses and had interviewed the witnesses prior to trial; (2) the defense counsel had cross-examined the witnesses at the Article 32 hearing; (3) the defense counsel cross-examined the witnesses in the subsequent public trial; (4) the witnesses recounted their allegations at various times before and during the trial and their individual accounts remained consistent throughout the process; (5) there was no evidence that the closure of the Article 32 hearing impeded the defense counsel’s trial preparation or that the testimony of the witnesses would have changed had there been a second, open Article 32 proceeding; and (6) the defense counsel was able to effectively cross-examine the witnesses, resulting in acquittal of both alleged rapes and one indecent assault

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

1. Article 59(a), UCMJ, establishes an appellate standard for review of the findings and sentence, not a trial-level standard for ruling on motions; this standard is that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; like its federal civilian counterpart, Fed. R. Crim. P. 52(a), Article 59(a) recognizes that errors are likely to occur in the dynamic atmosphere of a trial, and that prejudice must be shown before reversing the findings or sentence
2. as a general matter, if an appellant demonstrates that a ruling by the military judge was in error, the burden then shifts to the government to demonstrate that the error was harmless; if the error is of constitutional dimension or involves unlawful command influence, the government must show that the error was harmless beyond a reasonable doubt; an error is treated as inherently prejudicial, without the need for a further showing of prejudice, only if it amounts to a structural defect in the constitution of the trial
3. on appeal, an appellate court evaluates an error in an Article 32 proceeding under Article 59(a); the standard of review and allocation of burdens in such cases depends on whether the defect amounts to a structural constitutional error or other constitutional error, unlawful command influence, or other nonconstitutional error; to the extent that prior case law reflected inconsistent treatment of Article 59(a) in the context of Article 32 errors, Article 59(a) now applies to all Article 32 errors considered on direct review of the findings and sentence of a court-martial
4. although the Article 32 investigation is an important element of the military justice process, it is not part of the court-martial; an Article 32 investigation takes place before the convening authority’s decision to refer a case for trial by general court-martial; a case may be referred to trial by special court-martial without conducting an Article 32 investigation, even though a special court-martial can result in the stigma of a punitive discharge and confinement for up to one year; in light of those considerations, the Article 32 investigation is not so integral to a fair trial that an error in the proceeding necessarily falls within the narrow class of defects treated by the Supreme Court as structural error subject to reversal without testing for prejudice