U.S. v. Webb, 66 M.J. 89

First Principles: Constitutional Matters: Due Process

1. the Due Process Clause of the Fifth Amendment guarantees that criminal defendants be afforded a meaningful opportunity to present a complete defense; that guarantee requires the prosecution to disclose to the defense evidence favorable to an accused where the evidence is material either to guilt or to punishment; favorable evidence includes impeachment evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal

Military Justice Personnel: Military Judge: General Powers

1. Article 39(a), UCMJ, authorizes military judges to take such action after trial and before authenticating the record as may be required in the interest of justice; before authentication of the record, the military judge has the authority to conduct a post-trial session, set aside findings of guilty and the sentence, and order a new trial for a discovery violation
2. a military judge does not have authority under Article 73, UCMJ, to order a new trial
3. prior to authentication, a military judge has authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate

Military Justice Personnel: Military Judge: Discretion

1. a military judge did not abuse her discretion in ordering a new trial in a drug use case where the government failed to disclose impeachment evidence concerning the witness who was assigned as the observer of the accused’s provision of a urine sample for drug testing; evidence that the observer, a link in the chain of custody, had received nonjudicial punishment under Article 15 for dishonesty may have raised serious questions in the minds of the factfinder concerning the identity of the urine tested and whether it was unaltered when it was tested; this point may have borne extra weight with the factfinder where the government expressly prohibited having such persons serve as observers; alone or in conjunction with the accused’s denial of use, this evidence may have raised reasonable doubt in the factfinders’ minds as to the accused’s guilt; furthermore, the possession of this evidence may have altered the accused’s trial strategy -- he may not have testified; under all of these circumstances, the military judge cannot be faulted for concluding that it was probable that had the prosecution provided the nonjudicial punishment to the defense, it would have produced a substantially more favorable result for the accused -- in other words, it undermined confidence in the outcome of the trial; accordingly, in this case, the government’s failure to disclose exculpatory evidence affecting a witness’s credibility that the accused specifically asked the government to disclose was not harmless beyond a reasonable doubt

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. to convict of wrongful use of cocaine under Article 112a, UCMJ, the government must prove the accused used that controlled substance and that the use was wrongful; knowledge of the presence of the controlled substance is a required component of wrongful use; when there is evidence that the accused’s body contained a controlled substance, the factfinder may infer that the accused used the substance knowingly
2. if the evidence that the accused’s body contains a controlled substance is based solely upon a urinalysis, the court must be convinced the urine specimen that was tested was the accused’s; fungible evidence, such as urine specimens, generally becomes admissible and material through a showing of continuous custody which preserves the evidence in an unaltered state; evidence that an observer of the urinalysis, a link in the chain of custody, had been punished for dishonesty may raise serious questions in the minds of the factfinder concerning the identity of the urine tested and whether it was unaltered when it was tested; this point may bear extra weight with the factfinder where the government expressly prohibits having such persons serve as observers

Core Criminal Law Subjects: Evidence: Impeachment

1. like other forms of exculpatory evidence, impeachment evidence is material to guilt or punishment only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; under the reasonable probability standard of materiality, the question is not whether the accused would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial; therefore, a reasonable probability of a different result is shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial; failing to disclose such evidence is a due process violation irrespective of the good faith or bad faith of the prosecution

Trial Stages: Pretrial: Discovery

1. the Due Process Clause of the Fifth Amendment guarantees that criminal defendants be afforded a meaningful opportunity to present a complete defense; that guarantee requires the prosecution to disclose to the defense evidence favorable to an accused where the evidence is material either to guilt or to punishment; favorable evidence includes impeachment evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal
2. like other forms of exculpatory evidence, impeachment evidence is material to guilt or punishment only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; under the reasonable probability standard of materiality, the question is not whether the accused would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial; therefore, a reasonable probability of a different result is shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial; failing to disclose such evidence is a due process violation irrespective of the good faith or bad faith of the prosecution
3. in military practice, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe; subject to certain exceptions and upon request of the defense, the trial counsel must permit the defense to inspect any documents within the custody, or control of military authorities that are material to the preparation of the defense; thus, an accused’s right to discovery is not limited to evidence that would be known to be admissible at trial; it includes materials that would assist the defense in formulating a defense strategy

Trial Stages: Post-Trial Hearings: Authority for

1. Article 39(a), UCMJ, authorizes military judges to take such action after trial and before authenticating the record as may be required in the interest of justice; before authentication of the record, the military judge has the authority to conduct a post-trial session, set aside findings of guilty and the sentence, and order a new trial for a discovery violation
2. a military judge does not have authority under Article 73, UCMJ, to order a new trial
3. prior to authentication, a military judge has authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate

Trial Stages: Post-Trial Hearings: Findings and Rulings

1. a military judge did not abuse her discretion in ordering a new trial in a drug use case where the government failed to disclose impeachment evidence concerning the witness who was assigned as the observer of the accused’s provision of a urine sample for drug testing; evidence that the observer, a link in the chain of custody, had received nonjudicial punishment under Article 15 for dishonesty may have raised serious questions in the minds of the factfinder concerning the identity of the urine tested and whether it was unaltered when it was tested; this point may have borne extra weight with the factfinder where the government expressly prohibited having such persons serve as observers; alone or in conjunction with the accused’s denial of use, this evidence may have raised reasonable doubt in the factfinders’ minds as to the accused’s guilt; furthermore, the possession of this evidence may have altered the accused’s trial strategy -- he may not have testified; under all of these circumstances, the military judge cannot be faulted for concluding that it was probable that had the prosecution provided the nonjudicial punishment to the defense, it would have produced a substantially more favorable result for the accused -- in other words, it undermined confidence in the outcome of the trial; accordingly, in this case, the government’s failure to disclose exculpatory evidence affecting a witness’s credibility that the accused specifically asked the government to disclose was not harmless beyond a reasonable doubt

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

1. in cases where the defense has requested any undisclosed impeachment evidence, an appellate court requires the government to show that nondisclosure is harmless beyond a reasonable doubt
2. an appellate court reviews a military judge’s decision to order a new trial for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law

Trial Stages: Petition for a New Trial: Generally

1. Article 39(a), UCMJ, authorizes military judges to take such action after trial and before authenticating the record as may be required in the interest of justice; before authentication of the record, the military judge has the authority to conduct a post-trial session, set aside findings of guilty and the sentence, and order a new trial for a discovery violation
2. a military judge does not have authority under Article 73, UCMJ, to order a new trial
3. prior to authentication, a military judge has authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate
4. a military judge did not abuse her discretion in ordering a new trial in a drug use case where the government failed to disclose impeachment evidence concerning the witness who was assigned as the observer of the accused’s provision of a urine sample for drug testing; evidence that the observer, a link in the chain of custody, had received nonjudicial punishment under Article 15 for dishonesty may have raised serious questions in the minds of the factfinder concerning the identity of the urine tested and whether it was unaltered when it was tested; this point may have borne extra weight with the factfinder where the government expressly prohibited having such persons serve as observers; alone or in conjunction with the accused’s denial of use, this evidence may have raised reasonable doubt in the factfinders’ minds as to the accused’s guilt; furthermore, the possession of this evidence may have altered the accused’s trial strategy -- he may not have testified; under all of these circumstances, the military judge cannot be faulted for concluding that it was probable that had the prosecution provided the nonjudicial punishment to the defense, it would have produced a substantially more favorable result for the accused -- in other words, it undermined confidence in the outcome of the trial; accordingly, in this case, the government’s failure to disclose exculpatory evidence affecting a witness’s credibility that the accused specifically asked the government to disclose was not harmless beyond a reasonable doubt

Trial Stages: Petition for a New Trial: Newly Discovered Evidence

1. prior to authentication, a military judge has authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate

Trial Stages: Petition for a New Trial: Appellate Review

1. an appellate court reviews a military judge’s decision to order a new trial for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law