U.S. v. Key, 65 M.J. 172

Trial Stages: Post-Trial Hearings: Findings and Rulings

1. at a post-trial hearing to determine whether a government informant withheld relevant information from the defense that affected the outcome of appellant’s trial and whether appellant was entitled to a new trial, the military judge erred by not allowing the trial defense counsel to testify as to what transpired during that counsel’s pretrial interview of the informant; the defense claimed that the informant purposely withheld information about whether the government paid her for her testimony; the defense counsel’s testimony would have been relevant to a determination of the informant’s credibility and whether she purposely withheld impeachment evidence from the defense; by refusing to permit the defense counsel to testify at the post-trial hearing and by considering only the informant’s testimony concerning the pretrial interview, the military judge unduly restricted the ambit of the post-trial hearing

Trial Stages: Appeals: Harmless / Prejudicial Error

1. at a post-trial hearing to determine whether a government informant withheld from the defense impeachment evidence regarding the informant’s possible financial motive for her testimony and whether that affected the outcome of appellant’s trial and whether appellant was entitled to a new trial, the military judge’s error in not allowing the trial defense counsel to testify as to what transpired during that counsel’s pretrial interview of the informant was not prejudicial where the defense counsel’s affidavit concerning this interview did not significantly impeach the informant’s testimony; the informant’s knowledge, without more, of the eventual possibility of being paid for her work as an informant had limited impeachment value, especially when it is not clear from the defense counsel’s affidavit that his questions were specific enough to elicit that she had; in light of all the other pertinent evidence, including the testimony of other witnesses as to appellant’s demeanor at the collection site and the positive urinalysis evidence itself, the error was harmless -- it did not substantially influence the outcome of the case