U.S. v. Simmermacher, 74 M.J. 196

First Principles: Constitutional Matters: Due Process

1. a constitutional duty to preserve evidence exists if the following conditions are met: the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; in addition, an appellant must prove bad faith by the government to establish a violation of the due process clause when potentially useful evidence has not been preserved
2. constitutional due process standards are not a part of an RCM 703(f)(2) analysis for unavailable evidence; while the due process standards are still applicable to a constitutional due process inquiry for lost or destroyed evidence, RCM 703(f)(2) is an additional protection the President granted to servicemembers whose lost or destroyed evidence fall within the rule’s criteria

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when evidence is lost or destroyed, RCM 703(f)(2) sets forth the criteria and process a military judge must follow in deciding whether an accused is entitled to relief and what type of relief may be given

Military Justice Personnel: Military Judge: Discretion

1. where appellant satisfied the three criteria for unavailable evidence set forth in RCM 703(f)(2), and because a continuance or other relief could not have produced the destroyed urine sample, the military judge abused his discretion when he failed to abate the proceedings as to the charge of wrongful use of cocaine under Article 112a
2. in determining under RCM 703(f)(2) whether an adequate substitute for lost or destroyed evidence is available, a military judge has broad discretion; it is when there is no adequate substitute is available that military judges do not have discretion to vary from the prescribed remedy of abatement of proceedings

Core Criminal Law Subjects: Evidence: Generally

1. a constitutional duty to preserve evidence exists if the following conditions are met: the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; in addition, an appellant must prove bad faith by the government to establish a violation of the due process clause when potentially useful evidence has not been preserved
2. RCM 703(f)(2) provides that notwithstanding the rule that each party is entitled to the production of evidence that is relevant and necessary, a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process; however, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party
3. constitutional due process standards are not a part of an RCM 703(f)(2) analysis for unavailable evidence; while the due process standards are still applicable to a constitutional due process inquiry for lost or destroyed evidence, RCM 703(f)(2) is an additional protection the President granted to servicemembers whose lost or destroyed evidence fall within the rule’s criteria
4. if a continuance or other relief cannot produce the missing evidence, the remaining remedy for a violation of RCM 703(f)(2) is abatement of the proceedings; to the extent that the language in US v. Manuel, 43 MJ 282 (CAAF 1995) and US v. Madigan, 63 MJ 118 (CAAF 2006), are inconsistent with this holding, that language is overruled
5. under RCM 703(f)(2), a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process unless three criteria are met: (1) the lost or destroyed evidence was of such central importance that it was essential to a fair trial; (2) there was no adequate substitute for the lost or destroyed evidence; and (3) the loss or destruction of the evidence was not the fault of nor could have it been prevented by the requesting party

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

1. when evidence is lost or destroyed, a military judge’s failure to abate proceedings is reviewed for an abuse of discretion
2. an abuse of discretion occurs when a court’s findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. when a statute’s language is plain, the sole function of the courts - at least where the disposition required by the text is not absurd - is to enforce it according to its terms; there is no rule of statutory construction that allows for a court to append additional language as it sees fit
2. ordinary rules of statutory construction apply in interpreting the RCM