U.S. v. Clark, 79 M.J. 449

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. RCM 914(a) states that after a witness other than the accused has testified on direct examination, the military judge upon motion of the opposing party shall order the production of any statement of the witness that relates to the subject matter concerning which the witness has testified; a statement is defined, in part, as a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in an electrical, or other recording
2. the Jencks Act [18 USC § 3500(b)] 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; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, Jencks Act case law informs the analysis of RCM 914 issues
3. at the trial level, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver a statement: (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; however, when, as here, the military judge erred in denying a RCM 914 motion, an appellate court must determine whether this error prejudiced appellant

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s decision whether to strike testimony under RCM 914 is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect

Core Criminal Law Subjects: Witnesses: Confrontation

1. RCM 914(a) states that after a witness other than the accused has testified on direct examination, the military judge upon motion of the opposing party shall order the production of any statement of the witness that relates to the subject matter concerning which the witness has testified; a statement is defined, in part, as a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in an electrical, or other recording
2. the Jencks Act [18 USC § 3500(b)] 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; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, Jencks Act case law informs the analysis of RCM 914 issues
3. in this case, where law enforcement agents questioned appellant in a recorded interrogation about allegations that he raped and sexually assaulted his four-year-old daughter, the agents’ comments to appellant constituted statements under RCM 914, and thus once the agents had testified, the recording had to be produced
4. the good faith loss or destruction of Jencks Act material and RCM 914 material may excuse the government’s failure to produce statements; and a finding of sufficient negligence may serve as the basis for a military judge’s conclusion that the good faith loss doctrine does not apply
5. at the trial level, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver a statement: (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; however, when, as here, the military judge erred in denying a RCM 914 motion, an appellate court must determine whether this error prejudiced appellant
6. an appellate court tests for prejudice based on the nature of the right violated; the standard of review and allocation of burdens depend on whether the defect amounted to a constitutional error or nonconstitutional error; generally, a Jencks Act violation will not rise to a constitutional level; however, this principle is not absolute; it may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right to confrontation; as such, the failure to provide material to which an accused is entitled under the Jencks Act may adversely affect an accused’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation
7. in this case, where appellant was the subject of the law enforcement agents’ interrogation, and therefore was aware of the tone and general content of the agents’ comments, and where the agents were subject to cross-examination, appellant was not denied his right of confrontation; as a result, under these facts, the RCM 914 error in permitting the agents to testify despite the government’s inability to produce the recordings of their statements made during their interrogation of the accused infringed a procedural right rather than a fundamental constitutional right; therefore, the nonconstitutional error is tested for prejudice under Article 59(a), UCMJ
8. in this case, despite the erroneous admission of the law enforcement agents’ testimony in violation of RCM 914, appellant was not prejudiced where admissions that appellant made during other portions of his interview that were admissible were damning, where the record revealed that both appellant and the alleged victim had genital herpes and this type of herpes is transmitted by direct sexual contact, where appellant’s participation in the interrogation gave trial defense counsel sufficient information to cross-examine the agents, and where appellant chose to testify and had the opportunity to explain to the members the manner in which the agents conducted the interrogation; accordingly, the military judge’s RCM 914 error did not have a substantial influence on the findings

Trial Stages: Appeals: Harmless / Prejudicial Error

1. at the trial level, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver a statement: (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; however, when, as here, the military judge erred in denying a RCM 914 motion, an appellate court must determine whether this error prejudiced appellant
2. an appellate court tests for prejudice based on the nature of the right violated; the standard of review and allocation of burdens depend on whether the defect amounted to a constitutional error or nonconstitutional error; generally, a Jencks Act violation will not rise to a constitutional level; however, this principle is not absolute; it may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right to confrontation; as such, the failure to provide material to which an accused is entitled under the Jencks Act may adversely affect an accused’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation
3. in this case, where appellant was the subject of the law enforcement agents’ interrogation, and therefore was aware of the tone and general content of the agents’ comments, and where the agents were subject to cross-examination, appellant was not denied his right of confrontation; as a result, under these facts, the RCM 914 error in permitting the agents to testify despite the government’s inability to produce the recordings of their statements made during their interrogation of the accused infringed a procedural right rather than a fundamental constitutional right; therefore, the nonconstitutional error is tested for prejudice under Article 59(a), UCMJ
4. for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
5. in this case, despite the erroneous admission of the law enforcement agents’ testimony in violation of RCM 914, appellant was not prejudiced where admissions that appellant made during other portions of his interview that were admissible were damning, where the record revealed that both appellant and the alleged victim had genital herpes and this type of herpes is transmitted by direct sexual contact, where appellant’s participation in the interrogation gave trial defense counsel sufficient information to cross-examine the agents, and where appellant chose to testify and had the opportunity to explain to the members the manner in which the agents conducted the interrogation; accordingly, the military judge’s RCM 914 error did not have a substantial influence on the findings

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

1. a military judge’s decision whether to strike testimony under RCM 914 is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect
2. an appellate court tests for prejudice based on the nature of the right violated; the standard of review and allocation of burdens depend on whether the defect amounted to a constitutional error or nonconstitutional error; generally, a Jencks Act violation will not rise to a constitutional level; however, this principle is not absolute; it may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right to confrontation; as such, the failure to provide material to which an accused is entitled under the Jencks Act may adversely affect a defendant’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation
3. for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
4. in this case, despite the erroneous admission of the law enforcement agents’ testimony in violation of RCM 914, appellant was not prejudiced where admissions that appellant made during other portions of his interview that were admissible were damning, where the record revealed that both appellant and the alleged victim had genital herpes and this type of herpes is transmitted by direct sexual contact, where appellant’s participation in the interrogation gave trial defense counsel sufficient information to cross-examine the agents, and where appellant chose to testify and had the opportunity to explain to the members the manner in which the agents conducted the interrogation; accordingly, the military judge’s RCM 914 error did not have a substantial influence on the findings