U.S. v. Jasper, 72 M.J. 276

First Principles: Constitutional Matters: Confrontation

1. while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading
2. a military judge’s erroneous ruling that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, violated appellant’s rights to confrontation and due process, given that (1) the alleged victim’s testimony was critical to the government’s case, (2) the erroneous exclusion of the alleged victim’s exculpatory statements prevented appellant from exposing the alleged nefarious motivation behind her allegations and testimony, and (3) appellant’s theory of the case was that both his wife and the alleged victim were lying; the military judge’s ruling prevented appellant from using the alleged victim’s statements to impeach her credibility through cross-examination or otherwise; in addition, the military judge’s error prevented appellant from presenting the alleged victim’s exculpatory statements to the panel through the pastor’s direct testimony, depriving him of relevant, material, and vital testimony and evidence

First Principles: Constitutional Matters: Due Process

1. a military judge’s erroneous ruling that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, violated appellant’s rights to confrontation and due process, given that (1) the alleged victim’s testimony was critical to the government’s case, (2) the erroneous exclusion of the alleged victim’s exculpatory statements prevented appellant from exposing the alleged nefarious motivation behind her allegations and testimony, and (3) appellant’s theory of the case was that both his wife and the alleged victim were lying; the military judge’s ruling prevented appellant from using the alleged victim’s statements to impeach her credibility through cross-examination or otherwise; in addition, the military judge’s error prevented appellant from presenting the alleged victim’s exculpatory statements to the panel through the pastor’s direct testimony, depriving him of relevant, material, and vital testimony and evidence

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. where a privilege holder, in the absence of factors like coercion or trickery, affirmatively consents to the disclosure of the privileged communication to a third party, the privilege is waived, regardless of whether the privilege holder was aware that: (1) the communication was privileged, or (2) consenting to the disclosure of the communication waived the privilege
2. under MRE 510(a), a privilege is waived if the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege
3. the alleged sexual abuse victim and her mother waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, where both she and her mother affirmatively granted that pastor permission to disclose their communications to trial counsel, and he did disclose them; waiver under MRE 510(a) does not require that the privilege holder have knowledge that the waived statements would otherwise be privileged, or of how the waived statements will be used; no language appears in MRE 510(a) that requires a knowing and intelligent waiver
4. testimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man’s evidence; because privileges run contrary to a court’s truth-seeking function, they are narrowly construed; while determining waiver of a privilege is an evaluation that demands a fastidious sifting of the facts and a careful weighing of the circumstances, waiver has never turned on anything more than the requirement set forth in MRE 510(a) that the privilege holder voluntarily discloses or consents to disclosure of any significant part of the matter or communication
5. waiver of a privilege has been found on nothing more than the privilege holder’s failure to take adequate precautions to maintain confidentiality, and for a privilege to be valid, the privilege holder need not intend to waive the privilege; instead, whether a waiver is valid turns on whether the disclosure was voluntary; MRE 510(a) does not require that a waiver of privilege be made knowingly or intelligently

Core Criminal Law Subjects: Evidence: Privileges › Communications to clergy

1. MRE 503(a) provides that a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman if such communication is made either as a formal act of religion or as a matter of conscience; the clergy privilege may be claimed by the person, the person’s guardian, or the clergyman on behalf of the person
2. the alleged sexual abuse victim and her mother waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, where both she and her mother affirmatively granted that pastor permission to disclose their communications to trial counsel, and he did disclose them; waiver under MRE 510(a) does not require that the privilege holder have knowledge that the waived statements would otherwise be privileged, or of how the waived statements will be used; no language appears in MRE 510(a) that requires a knowing and intelligent waiver

Core Criminal Law Subjects: Witnesses: Confrontation

1. while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading
2. a military judge’s erroneous ruling that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, violated appellant’s rights to confrontation and due process, given that (1) the alleged victim’s testimony was critical to the government’s case, (2) the erroneous exclusion of the alleged victim’s exculpatory statements prevented appellant from exposing the alleged nefarious motivation behind her allegations and testimony, and (3) appellant’s theory of the case was that both his wife and the alleged victim were lying; the military judge’s ruling prevented appellant from using the alleged victim’s statements to impeach her credibility through cross-examination or otherwise; in addition, the military judge’s error prevented appellant from presenting the alleged victim’s exculpatory statements to the panel through the pastor’s direct testimony, depriving him of relevant, material, and vital testimony and evidence

Trial Stages: Merits: Trial Procedures › Generally

1. while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where an appellate court finds constitutional error, the question remains whether that error was harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo
2. a military judge’s erroneous ruling that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, was not harmless beyond a reasonable doubt where the government’s case and appellant’s defense strategy hinged on the alleged victim’s credibility and where the ruling prevented appellant from using the alleged victim’s exculpatory statement to impeach the alleged victim’s testimony; the defense counsel’s use of the alleged victim’s exculpatory statement may have tipped the credibility balance in appellant’s favor, and its erroneous prohibition was not unimportant in relation to everything else the members considered, especially where the government exploited the erroneous ruling in its closing argument; in sum, the government failed to carry its burden to show that the deprivation of key evidence directly related to the credibility and motivation of its primary witness was harmless beyond a reasonable doubt, and the error materially prejudiced appellant’s ability to defend himself against every specification of which he was convicted

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

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; to find an abuse of discretion requires more than a mere difference of opinion; the challenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
2. where an appellate court finds constitutional error, the question remains whether that error was harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo
3. where a constitutional error improperly limits an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination, the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty
4. to find that a constitutional error limiting an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry focuses on whether the military judge’s ruling essentially deprived appellant of his best defense that may have tipped the credibility balance in appellant’s favor
5. where a constitutional error violates the accused’s right to be confronted with the witnesses against him, an appellate court applies a balancing test, weighing the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case