U.S. v. Savard, 69 M.J. 211

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when one of the parties so requests, RCM 905(h) requires that the military judge hold a hearing on a written motion
2. in light of the compulsory language of RCM 905(h), the military judge erred by refusing to hold a requested pretrial Article 39(a) session before rendering his decision to deny a defense motion to enjoin the government from deposing witnesses in the Philippines

Core Criminal Law Subjects: Motions, Generally: Pretrial › Generally

1. when one of the parties so requests, RCM 905(h) requires that the military judge hold a hearing on a written motion

Trial Stages: Pretrial: Motions

1. when one of the parties so requests, RCM 905(h) requires that the military judge hold a hearing on a written motion

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a military judge’s error in failing to hold a requested pretrial Article 39(a) session before rendering his decision to deny a defense motion to enjoin the government from deposing witnesses in the Philippines was harmless error, where (1) appellant failed to suggest what, if anything, he would have presented at the session that would have convinced the military judge to find that there was good cause to enjoin the prosecution from proceeding with the depositions, and (2) where appellant failed to assert that the military judge erred in admitting the depositions into evidence, or even attempted to show prejudice from anything contained therein
2. any error in a military judge’s failure to hold a pretrial Article 39(a) session to consider appellant’s motion asking that the detailed court members be ordered to answer written voir dire questions was harmless, where appellant did not object to the military judge’s rulings concerning the voir dire questions, and, other than speculating that the court members would answer more fully and truthfully in writing, did not establish a particular need for written questions

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

1. if a military judge errs by declining to grant an Article 39(a) session under RCM 905(h), an appellant’s convictions may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused
2. with respect to a nonconstitutional error, the government has the burden of establishing that the error did not have a substantial influence on the findings
3. in evaluating errors to see if they are harmless, the following test is employed: if, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand