U.S. v. Muwwakkil, 74 M.J. 187

Military Justice Personnel: Military Judge: Discretion

1. the military judge did not abuse her discretion in striking the complaining witness’s testimony based on the government’s failure to provide the defense with a recording of the complaining witness’s Article 32, UCMJ, testimony as required under the Jencks Act, 18 USC § 3500, and RCM 914, where she concluded that the loss of the Article 32, UCMJ, recorded testimony could only be remedied by striking the complaining witness’s testimony because: (1) the summarized testimony was not a substantially verbatim transcript of the complaining witness’s Article 32, UCMJ, testimony; (2) the recording was lost due to the government’s negligence, and perhaps, gross negligence; (3) impeachment of the complaining witness was the defense’s most important strategy; (4) the complaining witness was one of two key witnesses in the case; (5) the investigating officer found the complaining witness’s testimony to be inconsistent with previous statements; and (6) there was no substitute for the Article 32, UCMJ, recording
2. in this case, the military judge did not abuse her discretion in applying the Jencks Act and RCM 914 to strike the complaining witness’s testimony and in declining to apply the good faith loss doctrine, where she explicitly found that the government had engaged in negligent conduct and where a finding of negligence may serve as the basis for a military judge to conclude that the good faith loss doctrine does not apply

Core Criminal Law Subjects: Witnesses: Confrontation

1. the military judge did not abuse her discretion in striking the complaining witness’s testimony based on the government’s failure to provide the defense with a recording of the complaining witness’s Article 32, UCMJ, testimony as required under the Jencks Act, 18 USC § 3500, and RCM 914, where she concluded that the loss of the Article 32, UCMJ, recorded testimony could only be remedied by striking the complaining witness’s testimony because: (1) the summarized testimony was not a substantially verbatim transcript of the complaining witness’s Article 32, UCMJ, testimony; (2) the recording was lost due to the government’s negligence, and perhaps, gross negligence; (3) impeachment of the complaining witness was the defense’s most important strategy; (4) the complaining witness was one of two key witnesses in the case; (5) the investigating officer found the complaining witness’s testimony to be inconsistent with previous statements; and (6) there was no substitute for the Article 32, UCMJ, recording
2. the Jencks Act applies to courts-martial and requires the military judge, upon motion by the accused, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; the Jencks Act is intended to further the fair and just administration of criminal justice by providing for disclosure of statements for impeaching government witnesses
3. RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; both RCM 914 and the Jencks Act afford the defense an opportunity to impeach witnesses and enhance the accuracy of trial proceedings through cross-examination of witnesses
4. the Jencks Act’s major concern is with limiting and regulating defense access to government papers; on the other hand, the military justice system affords an accused broad rights and remedies under the discovery provisions of the UCMJ that are more extensive than those afforded in the civilian criminal justice system; as a result, resort to military discovery procedures should make resort to RCM 914 by the defense unnecessary in most cases; nonetheless, the military’s discovery rules do not render RCM 914 meaningless when its terms apply
5. recorded Article 32, UCMJ, testimony constitutes a statement under the Jencks Act and under RCM 914
6. the Jencks Act and RCM 914 apply to destroyed or lost statements; the government’s negligent failure to retain control of recorded Article 32, UCMJ, testimony of the complaining witness, that once had been in its exclusive possession, effectively means that the trial counsel elected not to comply with the requirement under RCM 914(e) to provide a copy of complaining witness’s statement to the defense
7. where the government negligently failed to retain control of recorded Article 32, UCMJ, testimony of the complaining witness, that once had been in its exclusive possession, under these circumstances and pursuant to RCM 914(e), the military judge was required to impose one of two sanctions on the government: (1) order that the testimony of the witness be disregarded by the trier of fact; or (2) declare a mistrial if required in the interest of justice
8. the Jencks Act jurisprudence, to include RCM 914, recognizes a judicially created good faith loss doctrine; this doctrine excuses the government’s failure to produce statements if the loss or destruction of evidence was in good faith; however, this exception is generally limited in its application and sanctions should be employed in cases of bad faith and negligent suppression of evidence
9. in this case, the military judge did not abuse her discretion in applying the Jencks Act and RCM 914 to strike the complaining witness’s testimony and in declining to apply the good faith loss doctrine, where she explicitly found that the government had engaged in negligent conduct and where a finding of negligence may serve as the basis for a military judge to conclude that the good faith loss doctrine does not apply
10. the plain text of RCM 914 provides two remedies for the government’s failure to deliver a statement without referencing a predicate finding of prejudice to the accused; a prejudice analysis is not required under RCM 914

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

1. an appellate court reviews a military judge’s decision to strike testimony under the Jencks Act and RCM 914 using an abuse of discretion standard