U.S. v. Graner, 69 M.J. 104

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when his findings of fact are clearly erroneous, the military judge’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
2. a military judge did not abuse his discretion in determining that the defense did not present an adequate theory of relevance to justify the compelled production of a DoD report regarding the duties owed to detainees during an interrogation; appellant, who was charged with the maltreatment of Iraqi detainees at an American-operated detainee facility in Iraq, presented no evidence that his state of mind at the facility was in any way affected by this DoD report that he had never seen; in addition, appellant’s affirmative duty to protect the detainees under his charge from abuse was not affected by any views on the international legal status of Iraqi detainees set out in the report; and finally, appellant failed to present any facts which, if true, would constitute unlawful command influence
3. a military judge did not abuse his discretion in declining to order the production of various documents that appellant maintained on appeal that he requested; RCM 703(f)(3) requires that any request for the production of evidence shall list each piece of evidence and a description of each item sufficient to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence; the defense failed to meet this burden with respect any of these documents with the exception of a DoD report
4. a military judge did not abuse his discretion in excluding the testimony of and an email from a mid-level military intelligence officer who would have testified about when military intelligence officers generally became more forceful in their treatment of detainees and who had written an email in which he stated that he favored the more forceful treatment of detainees during interrogation; although the defense indicated that this evidence would help establish the defense theory that appellant’s superiors authorized the rough treatment of detainees, the evidence was not relevant where there was no evidence that appellant, or anyone giving orders to appellant, had any contact with the officer or knew about the email, and where appellant was still able to present direct evidence that he and his coconspirators believed that they were supposed to soften up the detainees; given the total lack of evidence connecting the officer’s opinions with appellant’s conduct, neither the expected testimony nor the email had a tendency to show that any fact of consequence to the court-martial was more or less probable
5. a military judge has broad discretion as the gatekeeper to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance
6. in a prosecution of an accused charged with the maltreatment of detainees at an Iraqi detention facility, a military judge did not abuse his discretion when he limited the testimony of a use-of-force expert to the point that detainees stacked in a naked human pyramid would not have suffered from positional asphyxia, a dangerous medical condition where a person has trouble breathing as a result of pressure on the diaphragm, because of the manner in which they were stacked; the military judge properly determined that this expert had an insufficient basis to conclude that the naked human pyramid and the tether around the neck of one detainee were reasonable uses of force

Core Criminal Law Subjects: Crimes: Article 93 - Cruelty and Maltreatment Pre-2019 offenses

1. abuse of detainees in the custody or control of the United States may form the basis of a maltreatment conviction

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. an expert witness may provide opinion testimony if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case
2. a military judge has broad discretion as the gatekeeper to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance
3. in a prosecution of an accused charged with the maltreatment of detainees at an Iraqi detention facility, a military judge did not abuse his discretion when he limited the testimony of a use-of-force expert to the point that detainees stacked in a naked human pyramid would not have suffered from positional asphyxia, a dangerous medical condition where a person has trouble breathing as a result of pressure on the diaphragm, because of the manner in which they were stacked; the military judge properly determined that this expert had an insufficient basis to conclude that the naked human pyramid and the tether around the neck of one detainee were reasonable uses of force

Core Criminal Law Subjects: Evidence: Relevance

1. relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
2. a military judge did not abuse his discretion in determining that the defense did not present an adequate theory of relevance to justify the compelled production of a DoD report regarding the duties owed to detainees during an interrogation; appellant, who was charged with the maltreatment of Iraqi detainees at an American-operated detainee facility in Iraq, presented no evidence that his state of mind at the facility was in any way affected by this DoD report that he had never seen; in addition, appellant’s affirmative duty to protect the detainees under his charge from abuse was not affected by any views on the international legal status of Iraqi detainees set out in the report; and finally, appellant failed to present any facts which, if true, would constitute unlawful command influence
3. a military judge did not abuse his discretion in excluding the testimony of and an email from a mid-level military intelligence officer who would have testified about when military intelligence officers generally became more forceful in their treatment of detainees and who had written an email in which he stated that he favored the more forceful treatment of detainees during interrogation; although the defense indicated that this evidence would help establish the defense theory that appellant’s superiors authorized the rough treatment of detainees, the evidence was not relevant where there was no evidence that appellant, or anyone giving orders to appellant, had any contact with the officer or knew about the email, and where appellant was still able to present direct evidence that he and his coconspirators believed that they were supposed to soften up the detainees; given the total lack of evidence connecting the officer’s opinions with appellant’s conduct, neither the expected testimony nor the email had a tendency to show that any fact of consequence to the court-martial was more or less probable

Trial Stages: Pretrial: Discovery

1. the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain evidence in accordance with such regulations as the President may prescribe; the government’s suppression of evidence is a statutory violation if it violates the President’s discovery rules, promulgated under Article 46, UCMJ, which appear in RCM 701-703; three of these rules are: (1) each party is entitled to the production of evidence which is relevant and necessary, (2) upon the request of the defense, the government must produce any documents that are in the possession of military authorities and are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, and (3) the trial counsel must disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to (a) negate the guilt of the accused of an offense charged, (b) reduce the degree of guilt of the accused of an offense charged, or (c) reduce the punishment; of course, these rules are themselves grounded on the fundamental concept of relevance
2. a military judge did not abuse his discretion in determining that the defense did not present an adequate theory of relevance to justify the compelled production of a DoD report regarding the duties owed to detainees during an interrogation; appellant, who was charged with the maltreatment of Iraqi detainees at an American-operated detainee facility in Iraq, presented no evidence that his state of mind at the facility was in any way affected by this DoD report that he had never seen; in addition, appellant’s affirmative duty to protect the detainees under his charge from abuse was not affected by any views on the international legal status of Iraqi detainees set out in the report; finally, appellant failed to present any facts which, if true, would constitute unlawful command influence
3. a military judge did not abuse his discretion in declining to order the production of various documents that appellant maintained on appeal that he requested; RCM 703(f)(3) requires that any request for the production of evidence shall list each piece of evidence and a description of each item sufficient to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence; the defense failed to meet this burden with respect any of these documents with the exception of a DoD report

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

1. the CAAF will normally not consider any facts outside of the record established at the trial and the CCA; however, the CAAF may remand for further factfinding if an issue concerning an unresolved fact affects its resolution of the case

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

1. an appellate court reviews a military judge’s ruling on a request for the production of evidence under the strict standard of an abuse of discretion; a military judge abuses his discretion when his 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
2. an appellate court reviews a military judge’s decision on whether to admit evidence for an abuse of discretion