U.S. v. Matthews, 68 M.J. 29

Military Justice Personnel: Military Judge: Generally

1. given the plain meaning of the word “courts,” it is reasonable to conclude that MRE 509, creating a privilege for “deliberations of courts and grand and petit juries,” applies to military judges
2. consistent with MRE 101, and the text of MRE 509 itself, and in light of the prevailing federal common law rule that the deliberative process of judges is protected from disclosure, MRE 509, creating a privilege for “deliberations of courts and grand and petit juries,” protects the deliberative process of military judges from disclosure
3. a military judge’s deliberative process should generally be free from consideration in post-judgment proceedings because (1) the prohibition against compelling the testimony of a judge is to protect the integrity of the legal system itself, (2) such testimony threatens the finality of judgments, (3) deliberative process testimony disrupts one of the basic tenants of evidentiary law – reliability, (4) the concerns surrounding deliberative process testimony are compounded because a judge’s testimony regarding his own deliberations is essentially irrebuttable, and (5) the medium for evaluating a military judge’s reasoning is the record of trial, not a post-trial DuBay factfinding hearing
4. it is well-settled law that testimony revealing the deliberative thought processes of judges is inadmissible
5. the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals
6. the federal common law protection of the deliberative processes of judges is incorporated into military law through MRE 509, and encompasses military judges sitting alone; although the term “privilege” in this context is ambiguous, it is interpreted in a manner consistent with federal common law, and thus also in a manner consistent with both MRE 509 and MRE 101

Core Criminal Law Subjects: Evidence: Generally

1. it is a well established rule that principles of statutory construction are used in construing the Military Rules of Evidence; when the statute’s language is plain, the sole function of the courts - at least where the disposition required by the text is not absurd - is to enforce it according to its terms; in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage
2. MRE 101(b) instructs military courts to look to the federal rules and the common law for guidance on evidentiary issues where doing so is not otherwise prescribed in the MCM and insofar as practicable and not inconsistent with or contrary to the UCMJ or the MCM; MRE 101(b) further mandates that, when looking to such federal law, military courts should consider first, the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, and second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law
3. it is well-settled law that testimony revealing the deliberative thought processes of judges is inadmissible
4. the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. MRE 509 is included in the “Privileges” section of the Military Rules of Evidence, is entitled “Deliberations of courts and juries,” and provides that except as provided in MRE 606, the deliberations of courts and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged
2. MRE 606(b) expressly protects the deliberations of court members
3. given the plain meaning of the word “courts,” it is reasonable to conclude that MRE 509, creating a privilege for “deliberations of courts and grand and petit juries,” applies to military judges
4. consistent with MRE 101, and the text of MRE 509 itself, and in light of the prevailing federal common law rule that the deliberative process of judges is protected from disclosure, MRE 509, creating a privilege for “deliberations of courts and grand and petit juries,” protects the deliberative process of military judges from disclosure
5. it is well-settled law that testimony revealing the deliberative thought processes of judges is inadmissible
6. the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals
7. the federal common law protection of the deliberative processes of judges is incorporated into military law through MRE 509, and encompasses military judges sitting alone; although the term “privilege” in this context is ambiguous, it is interpreted in a manner consistent with federal common law, and thus also in a manner consistent with both MRE 509 and MRE 101

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. CAAF reviews de novo a CCA’s conclusion that MRE 509 [Privileges - Deliberations of courts and juries] is inapplicable to military judges

Trial Stages: Appeals: Scope of Review

1. it is inappropriate to base an appellate opinion on assertions dehors the record

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

1. CAAF reviews de novo a CCA’s conclusion that MRE 509 [Privileges - Deliberations of courts and juries] is inapplicable to military judges

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. it is a well established rule that principles of statutory construction are used in construing the Military Rules of Evidence; when the statute’s language is plain, the sole function of the courts - at least where the disposition required by the text is not absurd - is to enforce it according to its terms; in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. it is a well established rule that principles of statutory construction are used in construing the Military Rules of Evidence; when the statute’s language is plain, the sole function of the courts - at least where the disposition required by the text is not absurd - is to enforce it according to its terms; in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage
2. a canon of contextual construction counsels that a word gathers meaning from the words around it