U.S. v. Bess, 75 M.J. 70

First Principles: Constitutional Matters: Confrontation

1. whether rooted directly in the Due Process Clause or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense
2. under the Compulsory Process Clause, a defendant has a right to call witnesses whose testimony is material and favorable to his defense
3. a defendant’s Sixth Amendment right to confront the witnesses against him is violated where it is found that a trial judge has limited cross-examination in a manner that precludes an entire line of relevant inquiry
4. while the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process
5. admitting evidence without allowing the parties to dispute the reliability of that evidence before the factfinder cannot be reconciled with Fifth Amendment due process, or the protections of the Sixth Amendment

First Principles: Constitutional Matters: Due Process

1. whether rooted directly in the Due Process Clause or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense
2. while the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process
3. admitting evidence without allowing the parties to dispute the reliability of that evidence before the factfinder cannot be reconciled with Fifth Amendment due process, or the protections of the Sixth Amendment

First Principles: Constitutional Matters: Right to Counsel

1. the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor

First Principles: Constitutional Matters: Right to Present a Defense

1. it is undeniable that a defendant has a constitutional right to present a defense
2. whether rooted directly in the Due Process Clause or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense
3. the right to present a defense has many aspects; under the Compulsory Process Clause, a defendant has a right to call witnesses whose testimony is material and favorable to his defense; a defendant’s Sixth Amendment right to confront the witnesses against him is violated where it is found that a trial judge has limited cross-examination in a manner that precludes an entire line of relevant inquiry; in addition, the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor
4. the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process; this balance is bounded on the one hand by the broad discretion of trial judges and rulemakers’ broad latitude under the Constitution to establish rules excluding evidence from criminal trials and on the other by the Constitution’s guarantee of a meaningful opportunity to present a complete defense
5. while the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process
6. in this case, the military judge’s giving muster reports to the court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses
7. admitting evidence without allowing the parties to dispute the reliability of that evidence before the factfinder cannot be reconciled with Fifth Amendment due process, or the protections of the Sixth Amendment
8. in this case, the military judges’ error in precluding appellant from challenging the evidentiary weight of the muster reports provided to the court members after they requested this evidence during their deliberations was not harmless beyond a reasonable doubt where one of the main issues at trial was the identity of the alleged perpetrator and challenging the evidentiary weight of the muster reports could have shaken the government’s case with respect to the identity of appellant as the perpetrator; given the interest that the reports clearly provoked among the members (asking for the reports during deliberations after the defense counsel in closing argument had emphasized the government’s failure to introduce the reports as a significant weakness in its case), and the timing of the verdict (a half-hour after receiving the reports and nearly six hours after deliberations had begun), it simply cannot be said that that the error did not contribute to the verdict beyond a reasonable doubt; as such, the denial of appellant’s right to present a complete defense was not harmless beyond a reasonable doubt

Military Justice Personnel: Defense Function: Generally

1. the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor

Military Justice Personnel: Military Judge: General Powers

1. under RCM 921(b), court members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced; the military judge may, in the exercise of discretion, grant such request
2. while the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process

Military Justice Personnel: Military Judge: Discretion

1. in this case, the daily muster reports offered under the business records exception were not so untrustworthy that their admission as business records constituted an abuse of discretion by the military judge where given the limited results of the cross-examination of the government witness and the defense witness testimony, nothing presented demonstrated a lack of trustworthiness; servicemembers represented as “present” on the muster reports had been physically verified by a line-level supervisor, and the rule requires only that the records be created based upon information transmitted by a person with knowledge; although the meaning of the designation for servicemembers listed on the reports as “late stay/special detail” could vary depending on the context, contemporaneous documentation need not be a model of statistical clarity to qualify as a business record
2. in this case, the military judge’s giving muster reports to court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses

Core Criminal Law Subjects: Defenses: Generally

1. it is undeniable that a defendant has a constitutional right to present a defense
2. whether rooted directly in the Due Process Clause or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense
3. the right to present a defense has many aspects; under the Compulsory Process Clause, a defendant has a right to call witnesses whose testimony is material and favorable to his defense; a defendant’s Sixth Amendment right to confront the witnesses against him is violated where it is found that a trial judge has limited cross-examination in a manner that precludes an entire line of relevant inquiry; in addition, the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor

Core Criminal Law Subjects: Evidence: Generally

1. under RCM 921(b), court members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced; the military judge may, in the exercise of discretion, grant such request
2. in this case, the military judge’s giving muster reports to the court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses
3. admitting evidence without allowing the parties to dispute the reliability of that evidence before the factfinder cannot be reconciled with Fifth Amendment due process, or the protections of the Sixth Amendment

Core Criminal Law Subjects: Evidence: Hearsay › Business entries

1. daily muster reports qualified as business records under MRE 803(6) where they were made at or near the time from information transmitted by a person with knowledge, kept in the course of a regularly conducted business activity, and it was the regular practice of that business activity to make the reports, all as shown by the testimony of the custodian
2. even if the basic requirements for the business record hearsay exception are satisfied (i.e., the records were made at or near the time from information transmitted by a person with knowledge, kept in the course of a regularly conducted business activity, and it was the regular practice of that business activity to make the report, all as shown by the testimony of the custodian), a document may still fail to qualify as a business record if the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness
3. the opponent of the admission of records offered under the business record exception bears the burden of establishing sufficient indicia of untrustworthiness
4. minor errors in a business record do not show that the business record is untrustworthy, but significant mistakes or internal contradictions may indicate a lack of trustworthiness; courts should not focus on questions regarding the accuracy of a record in making the trustworthiness determination because the factfinder is responsible for weighing and assessing credibility of the admitted evidence
5. in this case, the daily muster reports offered under the business records exception were not so untrustworthy that their admission as business records constituted an abuse of discretion by the military judge where given the limited results of the cross-examination of the government witness and the defense witness testimony, nothing presented demonstrated a lack of trustworthiness; servicemembers represented as “present” on the muster reports had been physically verified by a line-level supervisor, and the rule requires only that the records be created based upon information transmitted by a person with knowledge; although the meaning of the designation for servicemembers listed on the reports as “late stay/special detail” could vary depending on the context, contemporaneous documentation need not be a model of statistical clarity to qualify as a business record

Core Criminal Law Subjects: Witnesses: Confrontation

1. a defendant’s Sixth Amendment right to confront the witnesses against him is violated where it is found that a trial judge has limited cross-examination in a manner that precludes an entire line of relevant inquiry
2. in this case, the military judge’s giving muster reports to the court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. the opponent of the admission of records offered under the business record exception bears the burden of establishing sufficient indicia of untrustworthiness

Trial Stages: Merits: Trial Procedures › Generally

1. under RCM 921(b), court members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced; the military judge may, in the exercise of discretion, grant such request

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the military judges’ error in precluding appellant from challenging the evidentiary weight of the muster reports provided to the court members after they requested this evidence during their deliberations was not harmless beyond a reasonable doubt where one of the main issues at trial was the identity of the alleged perpetrator and challenging the evidentiary weight of the muster reports could have shaken the government’s case with respect to the identity of appellant as the perpetrator; given the interest that the reports clearly provoked among the members (asking for the reports during deliberations after the defense counsel in closing argument had emphasized the government’s failure to introduce the reports as a significant weakness in its case), and the timing of the verdict (a half-hour after receiving the reports and nearly six hours after deliberations had begun), it simply cannot be said that that the error did not contribute to the verdict beyond a reasonable doubt; as such, the denial of appellant’s right to present a complete defense was not harmless beyond a reasonable doubt

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

1. an appellate court reviews a military judge’s decision to admit or exclude evidence for abuse of discretion; this standard requires more than just our disagreement with the military judge’s decision; instead, an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law
2. for constitutional errors, the government must persuade an appellate court that the error was harmless beyond a reasonable doubt; this is a question of law which an appellate court reviews de novo; and in this review, an appellate court will not look at some hypothetical reasonable panel, but at whether the guilty verdict actually rendered in the trial was surely unattributable to the error