U.S. v. Clifton, 71 M.J. 489

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge may not summarily deny a member’s request to recall witnesses for further questioning; in light of Article 46, UCMJ, RCM 921(b), MRE 614(a), and US v. Lampani, 14 MJ 22 (CMA 1982), some analysis on the record is required; rather than summarily approving or denying such a request, a military judge must consider factors such as difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be privileged; and the objections of the parties to reopening the evidence before ruling
2. in this case, the military judge’s summary denial of the member’s request to recall two witnesses for further questioning was plain and obvious error in light of US v. Lampani, 14 MJ 22 (CMA 1982), Article 46, UCMJ, RCM 921(b), and MRE 614(a), where the military judge did not perform an analysis of three of the Lampanifactors before summarily denying the member’s request – that is, he failed to consider the difficulty in obtaining the witnesses and the concomitant delay, the materiality of the testimony that a witness could produce, and the likelihood that the testimony sought might be privileged; in fact, without knowing the nature of the member’s questions, it was not possible to ascertain the materiality of the testimony that the recalled witnesses could have provided; although the military judge committed error by not analyzing three of the four Lampanifactors, Lampani does not provide an exhaustive list of factors to weigh; in a case such as this, it would have been appropriate for the military judge to have considered, among other things, whether the members had already been given an opportunity to ask the witnesses questions
3. the reasons the military judge stated for denying the member’s request to recall two witnesses for further questioning were unsupported by the relevant legal principles; first, the military judge denied the request to recall a medical doctor because he had been permanently excused; the reason is not supported by law because an excused witness can be recalled; second, the military judge denied the request to recall appellant’s wife because the evidence had been closed; this reason for denying the request is also unsupported by law; a plain reading of RCM 921(b) confirms that witnesses can be recalled after presentation of evidence has concluded; RCM 921(b) states that members may request that the court-martial be reopened and that additional evidence be introduced following a military judge’s discretionary ruling on the matter

Military Justice Personnel: Military Judge: Discretion

1. an appellate court reviews a military judge’s denial of a panel member’s request to recall a witness for abuse of discretion

Military Justice Personnel: Court Members: Generally

1. Article 46, UCMJ, gives panel members the opportunity to obtain witnesses and other evidence; under RCM 921(b), members may request that the court-martial be reopened and that additional evidence be introduced; the military judge, may, in the exercise of discretion, grant such request; in addition, MRE 614(a) allows members to request to call or recall witnesses to testify at a court-martial

Military Justice Personnel: Court Members: Interrogation by Members

1. Article 46, UCMJ, gives panel members the opportunity to obtain witnesses and other evidence; under RCM 921(b), members may request that the court-martial be reopened and that additional evidence be introduced; the military judge, may, in the exercise of discretion, grant such request; in addition, MRE 614(a) allows members to request to call or recall witnesses to testify at a court-martial

Trial Stages: Appeals: Harmless / Prejudicial Error

1. appellant bears the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error
2. the military judge’s error in summarily denying a member’s request to recall two witnesses for further questioning was not prejudicial, where appellant’s conviction was supported by overwhelming evidence, to include his written confession, where both witnesses that the member wished to recall had already testified extensively, and where the members had opportunity to ask questions and did

Trial Stages: Appeals: Preservation of Error / Plain Error

1. under a plain error analysis, an appellate court will grant relief in a case of nonconstitutional error only if an appellant can demonstrate that (1) there was error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right of the accused
2. in this case, the military judge’s summary denial of the member’s request to recall two witnesses for further questioning was plain and obvious error in light of US v. Lampani, 14 MJ 22 (CMA 1982), Article 46, UCMJ, RCM 921(b), and MRE 614(a), where the military judge did not perform an analysis of three of the Lampanifactors before summarily denying the member’s request – that is, he failed to consider the difficulty in obtaining the witnesses and the concomitant delay, the materiality of the testimony that a witness could produce, and the likelihood that the testimony sought might be privileged; in fact, without knowing the nature of the member’s questions, it was not possible to ascertain the materiality of the testimony that the recalled witnesses could have provided; although the military judge committed error by not analyzing three of the four Lampanifactors, Lampani does not provide an exhaustive list of factors to weigh; in a case such as this, it would have been appropriate for the military judge to have considered, among other things, whether the members had already been given an opportunity to ask the witnesses questions

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

1. under a plain error analysis, this Court will grant relief in a case of nonconstitutional error only if an appellant can demonstrate that (1) there was error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right of the accused
2. an appellate court reviews a military judge’s denial of a panel member’s request to recall a witness for abuse of discretion
3. appellant bears the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error