U.S. v. Smith, 68 M.J. 445

First Principles: Constitutional Matters: Confrontation

1. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the right to confrontation includes the right of a military accused to cross-examine adverse witnesses
2. uncovering and presenting to court members a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; through cross-examination, an accused can expose to the members the facts from which they could appropriately draw inferences relating to the reliability of the witness

Core Criminal Law Subjects: Evidence: Generally

1. testimony is material if it is of consequence to the determination of an accused’s guilt; in determining whether evidence is of consequence to the determination of an accused’s guilt, an appellate court considers the importance of the issue for which the evidence was offered in relation to the other issues in the case, the extent to which this issue is in dispute, and the nature of other evidence in the case pertaining to this issue

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. an accused has the burden under MRE 412, the rule governing admission of evidence of the victim’s prior sexual conduct, of establishing his entitlement to any exception to the prohibition on the admission of evidence offered to prove that any alleged victim engaged in other sexual conduct; to establish that the excluded evidence would violate the constitutional rights of the accused, an accused must demonstrate that the evidence is relevant, material, and favorable to his defense, and thus whether it is necessary; the term favorable is synonymous with vital
2. even assuming that evidence that the victim was previously involved in consensual sexual relations with an enlisted member was relevant in the prosecution of appellant for sexual misconduct with the victim, the confrontation clause did not entitle him to cross-examine the victim about that prior relationship; although the victim’s credibility was in dispute, knowledge of the exact nature of her indiscretion in relation to the other issues in the case was not important where the military judge allowed appellant to present a fairly precise and plausible theory of bias, i.e., that the victim lied to preserve a secret which if revealed could have an adverse impact on her military career, including possibly disciplinary action under the UCMJ; while the victim’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellant’s extant theory of fabrication

Core Criminal Law Subjects: Witnesses: Confrontation

1. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; the right to confrontation includes the right of a military accused to cross-examine adverse witnesses
2. uncovering and presenting to court members a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; through cross-examination, an accused can expose to the members the facts from which they could appropriately draw inferences relating to the reliability of the witness
3. even assuming that evidence that the victim was previously involved in consensual sexual relations with an enlisted member was relevant in the prosecution of appellant for sexual misconduct with the victim, the confrontation clause did not entitle him to cross-examine the victim about that prior relationship; although the victim’s credibility was in dispute, knowledge of the exact nature of her indiscretion in relation to the other issues in the case was not important where the military judge allowed appellant to present a fairly precise and plausible theory of bias, i.e., that the victim lied to preserve a secret which if revealed could have an adverse impact on her military career, including possibly disciplinary action under the UCMJ; while the victim’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellant’s extant theory of fabrication

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

1. an accused has the burden under MRE 412, the rule governing admission of evidence of the victim’s prior sexual conduct, of establishing his entitlement to any exception to the prohibition on the admission of evidence offered to prove that any alleged victim engaged in other sexual conduct; to establish that the excluded evidence would violate the constitutional rights of the accused, an accused must demonstrate that the evidence is relevant, material, and favorable to his defense, and thus whether it is necessary; the term favorable is synonymous with vital

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

1. after appellant sought reconsideration of the CCA’s decision affirming his conviction, the 60-day period for filing a petition for review at CAAF began on the date the defense was formally notified, under the provisions of Article 67(b), UCMJ, of the CCA’s decision on reconsideration; until the CCA rendered a decision on the reconsideration request, either by denying reconsideration or by granting reconsideration and rendering a new decision, there was no CCA decision for the CAAF to review

Trial Stages: Appeals: Reconsideration

1. after appellant sought reconsideration of the CCA’s decision affirming his conviction, the 60-day period for filing a petition for review at CAAF began on the date the defense was formally notified, under the provisions of Article 67(b), UCMJ, of the CCA’s decision on reconsideration; until the CCA rendered a decision on the reconsideration request, either by denying reconsideration or by granting reconsideration and rendering a new decision, there was no CCA decision for the CAAF to review

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

1. an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; this abuse of discretion standard is also applied to alleged violations of the Sixth Amendment’s Confrontation Clause
2. testimony is material if it is of consequence to the determination of an accused’s guilt; in determining whether evidence is of consequence to the determination of an accused’s guilt, an appellate court considers the importance of the issue for which the evidence was offered in relation to the other issues in the case, the extent to which this issue is in dispute, and the nature of other evidence in the case pertaining to this issue