U.S. v. Humphries, 71 M.J. 209

First Principles: Jurisdiction: Generally

1. a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction; other rules, even if important and mandatory, should not be given the jurisdictional brand

First Principles: Jurisdiction: Subject Matter

1. in the absence of subject-matter jurisdiction, a charge must be dismissed

First Principles: Constitutional Matters: Generally

1. while a specification that fails to properly allege an element of a charged offense is defective, and while such a defect affects constitutional rights, it does not constitute structural error subject to automatic dismissal

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. the terminal element of Article 134, UCMJ, like any element of any criminal offense, must be separately charged and proven, and regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication

Core Criminal Law Subjects: Crimes: Article 134 - Adultery Pre-2019 offenses

1. a specification charging the accused with adultery in violation of Article 134, UCMJ, was defective because it failed to allege the terminal element of that offense, i.e., conduct prejudicial to good order and discipline or service discrediting conduct
2. failing to allege the terminal element of adultery under Article 134, UCMJ, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, was plain and obvious error; although the accused did not object to the form of the adultery specification at trial, because the law at the time of trial was settled and clearly contrary, it is enough that the error is plain now, and the error was forfeited rather than waived
3. a defective adultery specification in a contested case that failed to allege the terminal element under Article 134, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, resulted in material prejudice to the accused’s substantial right to notice under the Fifth and Sixth Amendments, where neither the specification nor the record provided notice of which terminal element or theory of criminality the government pursued in this case; the government never mentioned the adultery charge in its opening statement, did not present any specific evidence or call a single witness to testify as to why the accused’s conduct satisfied either clause 1, clause 2, or both clauses of the terminal element of Article 134, UCMJ, and made no attempt to tie any of the evidence or witnesses that it did call to the Article 134, UCMJ, adultery charge; although the military judge’s panel instructions correctly listed and defined the terminal element of Article 134, UCMJ, as an element of the adultery specification, this came after the close of evidence and, again, did not alert the accused to the government’s theory of guilt

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. the terminal element of Article 134, UCMJ, like any element of any criminal offense, must be separately charged and proven, and regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication
2. a defective adultery specification in a contested case that failed to allege the terminal element under Article 134, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, resulted in material prejudice to the accused’s substantial right to notice under the Fifth and Sixth Amendments, where neither the specification nor the record provided notice of which terminal element or theory of criminality the government pursued in this case; the government never mentioned the adultery charge in its opening statement, did not present any specific evidence or call a single witness to testify as to why the accused’s conduct satisfied either clause 1, clause 2, or both clauses of the terminal element of Article 134, UCMJ, and made no attempt to tie any of the evidence or witnesses that it did call to the Article 134, UCMJ, adultery charge; although the military judge’s panel instructions correctly listed and defined the terminal element of Article 134, UCMJ, as an element of the adultery specification, this came after the close of evidence and, again, did not alert the accused to the government’s theory of guilt

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. in the context of a plain error analysis of defective indictments, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused

Trial Stages: Pretrial: Charges and Specifications

1. a specification charging the accused with adultery in violation of Article 134, UCMJ, was defective where it omitted the terminal element of that offense, i.e., conduct prejudicial to good order and discipline or service discrediting conduct
2. while a specification that fails to properly allege an element of a charged offense is defective, and while such a defect affects constitutional rights, it does not constitute structural error subject to automatic dismissal
3. the apparently straightforward language of RCM 907(b)(1)(B), which provides that a charge or specification shall be dismissed at any stage of the proceedings if the specification fails to state an offense, does not survive the erosion of the legal basis for its existence and thus mandate automatic dismissal of a defective specification; a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction; other rules, even if important and mandatory, should not be given the jurisdictional brand
4. a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice
2. under Article 59(a), UCMJ, a finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; where an error of law materially prejudices a substantial right, an appellate court may notice the error, keeping in mind the need to encourage timely objections and reduce wasteful reversals and to respect the particular importance of the finality of guilty pleas; however, nothing in Article 59(a), UCMJ, mandates reversal even where an error falls within its terms; the statutory text of Article 59(a), UCMJ, with the high threshold of material prejudice to a substantial right and discretion to redress error, when considered in light of the principles the Supreme Court has articulated in its consideration of a different rule, preserves the careful balance between judicial efficiency and the redress of injustice
3. in contested cases where the error in a defective specification that failed to allege the terminal element was preserved, each case must be reviewed for harmless error to determine whether the constitutional error to the accused’s right to notice under the Fifth and Sixth Amendments was harmless beyond a reasonable doubt
4. in the plain error context, a defective specification alone is insufficient to constitute substantial prejudice to a material right; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted
5. a defective adultery specification in a contested case that failed to allege the terminal element under Article 134, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, resulted in material prejudice to the accused’s substantial right to notice under the Fifth and Sixth Amendments, where neither the specification nor the record provided notice of which terminal element or theory of criminality the government pursued in this case; the government never mentioned the adultery charge in its opening statement, did not present any specific evidence or call a single witness to testify as to why the accused’s conduct satisfied either clause 1, clause 2, or both clauses of the terminal element of Article 134, UCMJ, and made no attempt to tie any of the evidence or witnesses that it did call to the Article 134, UCMJ, adultery charge; although the military judge’s panel instructions correctly listed and defined the terminal element of Article 134, UCMJ, as an element of the adultery specification, this came after the close of evidence and, again, did not alert the accused to the government’s theory of guilt

Trial Stages: Appeals: Preservation of Error / Plain Error

1. a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice
2. in the context of a plain error analysis of defective indictments, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
3. in the plain error context, a defective specification alone is insufficient to constitute substantial prejudice to a material right; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted

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

1. whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo
2. where the law was settled at the time of trial and has subsequently changed, an appellate court applies the law as it exists today
3. a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice
4. in the context of a plain error analysis of defective indictments, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
5. in contested cases where the error in a defective specification that failed to allege the terminal element was preserved, each case must be reviewed for harmless error to determine whether the constitutional error to the accused’s right to notice under the Fifth and Sixth Amendments was harmless beyond a reasonable doubt
6. in the plain error context, a defective specification alone is insufficient to constitute substantial prejudice to a material right; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted