U.S. v. Brown, 72 M.J. 359

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. MRE 611(a) provides that the military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment; similarly, pursuant to Article 36, UCMJ, the President has directed that military judges shall ensure that the dignity and decorum of the proceedings are maintained and exercise reasonable control over the proceedings to promote the purposes of the RCMs and the MCM; courts-martial should be conducted in an atmosphere that is conducive to calm and detached deliberation and determination of the issues presented, and the military judge should prevent unnecessary waste of time and promote the ascertainment of truth

Military Justice Personnel: Military Judge: Discretion

1. a military judge did not abuse his discretion under MRE 611(a) when he allowed a victim advocate acting as a support person to sit next to a 17-year-old witness during her testimony in a rape prosecution; first, although the witness was not a child of tender years, the military judge found that she was not just crying during testimony, she was completely unintelligible and unable to speak because she was crying; moreover, the record reflects an effort on behalf of the military judge to proceed without the accommodation of a support person; when the witness first took the stand, she answered trial counsel’s questions in one-word or one-sentence answers; after the sixteenth question, the witness burst into tears; when trial counsel asked the witness if she would be okay, the witness continued crying; after the twenty-first question, the record notes the witness crying and saying, “I can’t do this;” after a pause, the trial counsel asked the victim if she wanted a break, and she indicated that she wanted a break; the military judge then recessed the court until the next morning; while he might have again determined following this overnight break whether or not the witness could now testify, he did not abuse his discretion in not doing so given the prior efforts to do so as well as his observations of the witness the prior day; second, the military judge minimized the risk of prejudice to the accused by instructing the advocate not to communicate with the witness and by instructing the members to disregard the presence of the advocate; moreover, there was no evidence, such as an admonition by the military judge or objection by defense counsel, suggesting that the advocate failed to follow the military judge’s instructions; nor is there any evidence that defense counsel’s ability to cross-examine the victim’s was negatively affected by the advocate’s presence; in this case, the witness was physically overtaken by sobbing and could not provide information to the court; where the military judge took reasonable steps to test the witness’s capacity to continue as well as steps to mitigate the risks of prejudice to the accused, it was within the military judge’s discretion to conclude that further attempts to proceed with a witness in such a state would needlessly consume time and not aid in the ascertainment of the truth

Core Criminal Law Subjects: Witnesses: Generally

1. MRE 611(a) provides that the military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment; similarly, pursuant to Article 36, UCMJ, the President has directed that military judges shall ensure that the dignity and decorum of the proceedings are maintained and exercise reasonable control over the proceedings to promote the purposes of the RCMs and the MCM; courts-martial should be conducted in an atmosphere that is conducive to calm and detached deliberation and determination of the issues presented, and the military judge should prevent unnecessary waste of time and promote the ascertainment of truth

Trial Stages: Merits: Trial Procedures › Generally

1. a military judge did not abuse his discretion under MRE 611(a) when he allowed a victim advocate acting as a support person to sit next to a 17-year-old witness during her testimony in a rape prosecution; first, although the witness was not a child of tender years, the military judge found that she was not just crying during testimony, she was completely unintelligible and unable to speak because she was crying; moreover, the record reflects an effort on behalf of the military judge to proceed without the accommodation of a support person; when the witness first took the stand, she answered trial counsel’s questions in one-word or one-sentence answers; after the sixteenth question, the witness burst into tears; when trial counsel asked the witness if she would be okay, the witness continued crying; after the twenty-first question, the record notes the witness crying and saying, “I can’t do this;” after a pause, the trial counsel asked the victim if she wanted a break, and she indicated that she wanted a break; the military judge then recessed the court until the next morning; while he might have again determined following this overnight break whether or not the witness could now testify, he did not abuse his discretion in not doing so given the prior efforts to do so as well as his observations of the witness the prior day; second, the military judge minimized the risk of prejudice to the accused by instructing the advocate not to communicate with the witness and by instructing the members to disregard the presence of the advocate; moreover, there was no evidence, such as an admonition by the military judge or objection by defense counsel, suggesting that the advocate failed to follow the military judge’s instructions; nor is there any evidence that defense counsel’s ability to cross-examine the victim’s was negatively affected by the advocate’s presence; in this case, the witness was physically overtaken by sobbing and could not provide information to the court; where the military judge took reasonable steps to test the witness’s capacity to continue as well as steps to mitigate the risks of prejudice to the accused, it was within the military judge’s discretion to conclude that further attempts to proceed with a witness in such a state would needlessly consume time and not aid in the ascertainment of the truth

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

1. an appellate court reviews a military judge’s control of the mode of witness interrogation pursuant to MRE 611 for abuse of discretion; similarly, an appellate court reviews a military judge’s exercise of reasonable control over the proceedings pursuant to RCM 801 for abuse of discretion; for a ruling to be an abuse of discretion, it must be more than a mere difference of opinion; rather it must be arbitrary, fanciful, clearly unreasonable or clearly erroneous