U.S. v. Burch, 67 M.J. 32

First Principles: Jurisdiction: Generally

1. federal courts, including courts in the military justice system established under Article I of the Constitution, are courts of limited jurisdiction

Military Justice Personnel: Military Judge: General Powers

1. under RCM 703(f)(4)(C), if the person having custody of evidence requests relief on grounds that compliance with the subpoena or order of production is unreasonable or oppressive, the military judge may direct that the subpoena or order of production be withdrawn or modified; under the rule, the military judge may direct that the evidence be submitted to the military judge for an in camera inspection in order to determine whether such relief should be granted
2. even if a qualified newsgathering privilege applied to cases in the military justice system, such a privilege would not preclude an in camera review by the military judge pursuant to RCM 703(f)(4)(C) under the circumstances where the description of the material at issue -- video outtakes from a specific interview in which appellant discussed the events occurring on the date of and in the place of the charged offenses -- is sufficient to meet a threshold showing of necessity for an in camera review; the military judge could not make an evaluation of necessity under the specific circumstances of this case without reviewing the outtakes for content and context

Military Justice Personnel: Military Judge: Discretion

1. the military judge abused his discretion in quashing a government’s subpoena for unaired footage of a television interview of the accused regarding the alleged offenses on the grounds that the footage was cumulative without first conducting an in camera review of the requested materials

Core Criminal Law Subjects: Evidence: Generally

1. in trials by courts-martial, 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; the President has provided that the parties and the court-martial shall have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process; under RCM 703(f)(1), each party is entitled to the production of evidence which is relevant and necessary; MRE 401 establishes a low threshold of relevance; and, as noted in the nonbinding Discussion accompanying RCM 703(f)(1), relevant evidence is necessary when it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue
2. under RCM 703(f)(4)(C), if the person having custody of evidence requests relief on grounds that compliance with the subpoena or order of production is unreasonable or oppressive, the military judge may direct that the subpoena or order of production be withdrawn or modified; under the rule, the military judge may direct that the evidence be submitted to the military judge for an in camera inspection in order to determine whether such relief should be granted
3. the military judge abused his discretion in quashing a government’s subpoena for unaired footage of a television interview of the accused regarding the alleged offenses on the grounds that the footage was cumulative without first conducting an in camera review of the requested materials
4. even if a qualified newsgathering privilege applied to cases in the military justice system, such a privilege would not preclude an in camera review by the military judge pursuant to RCM 703(f)(4)(C) under the circumstances where the description of the material at issue -- video outtakes from a specific interview in which appellant discussed the events occurring on the date of and in the place of the charged offenses -- is sufficient to meet a threshold showing of necessity for an in camera review; the military judge could not make an evaluation of necessity under the specific circumstances of this case without reviewing the outtakes for content and context

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Rule of completeness

1. the rule of completeness is a rule that benefits the party opposing admission of evidence, not the party offering the evidence

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. under MRE 501(a)(4), a privilege may be claimed under the principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to Rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the UCMJ, the MREs, or the MCM
2. even if a qualified newsgathering privilege applied to cases in the military justice system, such a privilege would not preclude an in camera review by the military judge pursuant to RCM 703(f)(4)(C) under the circumstances where the description of the material at issue -- video outtakes from a specific interview in which appellant discussed the events occurring on the date of and in the place of the charged offenses -- is sufficient to meet a threshold showing of necessity for an in camera review; the military judge could not make an evaluation of necessity under the specific circumstances of this case without reviewing the outtakes for content and context

Core Criminal Law Subjects: Evidence: Relevance

1. under RCM 703(f)(1), each party is entitled to the production of evidence which is relevant and necessary; MRE 401 establishes a low threshold of relevance; and, as noted in the nonbinding Discussion accompanying RCM 703(f)(1), relevant evidence is necessary when it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue

Trial Stages: Initial Review: Action

1. where a clear and unambiguous action is the convening authority’s last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence; the facts and circumstances predating the convening authority’s unambiguous action may not be relied on to find that appellant was not prejudiced
2. a convening authority’s action on the sentence is within the sole discretion of the convening authority as a matter of command prerogative
3. when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect, without reference to circumstances not reflected in the action itself; if the convening authority’s action is to be given effect, as required by RCM 1107, attendant circumstances preceding the action may not be utilized to undermine it
4. the effect of the convening authority’s action in this case is that confinement in excess of forty-five days was suspended and no other confinement was approved; in contradiction to this action, appellant served 223 days of confinement that both the parties and the CCA agree were suspended by the convening authority; within the military justice system, punishment suspended by a convening authority may not be executed; the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority; holding otherwise would neither give effect to a clear and unambiguous action by the convening authority

Trial Stages: Initial Review: Execution of Sentences

1. within the military justice system, punishment suspended by a convening authority may not be executed

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. Article 62, UCMJ, provides authority for interlocutory government appeals similar to the authority available in federal civilian criminal prosecutions under 18 USC § 3731; the CAAF consistently has looked to the decisions of the federal courts under section 3731 for guidance in interpreting the parallel provisions of Article 62; under those decisions, which provide important guidance limiting such review, a ruling that quashes a subpoena is subject to interlocutory appellate review
2. appellant had standing to file a motion to dismiss the government’s interlocutory appeal of the military judge’s evidentiary ruling to quash a subpoena issued to a television network that sought production of the unaired footage of a videotaped interview of appellant regarding his alleged offenses, where appellant had a direct interest in the scope of any ruling at trial or on appeal regarding the evidence that would be available for consideration at his trial
3. in criminal cases, prosecution appeals are not favored and are available only upon specific statutory authorization
4. Congress has authorized interlocutory prosecution appeals in cases tried by courts-martial under Article 62, UCMJ
5. federal court decisions interpreting 18 USC § 3731 constitute guidance, not binding precedent, in the interpretation of Article 62, UCMJ
6. Article 62, UCMJ, permits the government to appeal an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding; under this provision, trial counsel must file a certification with the military judge that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding
7. appellate courts in the military justice system are required to give priority to cases arising under Article 62 whenever practicable
8. a trial court ruling quashing a subpoena is appealable under Article 62, UCMJ, which permits the government to appeal an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding; in this regard, guidance from cases under the parallel federal statute, 18 USC § 3731, restricts interlocutory government appeals to those rulings that have a direct rather than incidental effect on the exclusion of evidence; and the term “excludes evidence” in military law is not different from the term “excluding evidence” in federal civilian proceedings with respect to an interlocutory appeal of a decision to quash a subpoena for the production of evidence
9. a military judge’s ruling that quashed a government subpoena issued to a television network seeking production of unaired outtakes of a videotaped interview of the accused regarding the alleged offenses was subject to appeal under Article 62, UCMJ, a statute permitting the government to appeal an “order or ruling which excluded evidence,” because the ruling had the direct effect of excluding the outtakes from the pool of potential evidence that would be admissible at the court-martial

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. where a clear and unambiguous action is the convening authority’s last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence; the CCA erred in relying on facts and circumstances predating the convening authority’s unambiguous action to find that appellant was not prejudiced

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where a clear and unambiguous action is the convening authority’s last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence; the facts and circumstances predating the convening authority’s unambiguous action may not be relied on to find that appellant was not prejudiced
2. the effect of the convening authority’s action in this case is that confinement in excess of forty-five days was suspended and no other confinement was approved; in contradiction to this action, appellant served 223 days of confinement that both the parties and the CCA agree were suspended by the convening authority; within the military justice system, punishment suspended by a convening authority may not be executed; the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority; holding otherwise would neither give effect to a clear and unambiguous action by the convening authority

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

1. a military judge’s decision to quash a subpoena is reviewed under an abuse of discretion standard

Miscellaneous Matters: Judicial Review: Standing

1. the jurisdictional concept of standing normally concerns the limitation of the judicial power of the United States to cases and controversies under Article III, Section 2 of the US Constitution; the CAAF, which was established under Article I of the Constitution, has applied the principles from the cases and controversies limitation as a prudential matter
2. the evidentiary concept of standing in criminal cases concerns the issue of whether a defendant has a sufficient interest in the object of a search, a claim of privilege, or other evidentiary matter to prevail on the merits of the objection; these cases involve the criteria used to assess the merits of a criminal defendant’s evidentiary claims, not the right of a defendant to participate as a litigant in the assessment of those claims
3. appellant had standing to file a motion to dismiss the government’s interlocutory appeal of the military judge’s evidentiary ruling to quash a subpoena issued to a television network that sought production of the unaired footage of a videotaped interview of appellant regarding his alleged offenses, where appellant had a direct interest in the scope of any ruling at trial or on appeal regarding the evidence that would be available for consideration at his trial