U.S. v. Reyes, 80 M.J. 218

Military Justice Personnel: Defense Function: Responsibilities

1. although the government often may suggest to the defense an appropriate expert from government resources, it is not the prosecution’s duty to locate defense experts; it is the defense counsel’s duty to provide the convening authority with the names of the experts the defense wishes the government to employ on its behalf
2. the prosecution’s good faith attempts to locate expert consultants for the defense does not relieve the defense of its responsibility to locate defense experts; a defense counsel is responsible for doing his or her homework

Military Justice Personnel: Prosecution Function: Generally

1. although the government often may suggest to the defense an appropriate expert from government resources, it is not the prosecution’s duty to locate defense experts; it is the defense counsel’s duty to provide the convening authority with the names of the experts the defense wishes the government to employ on its behalf

Military Justice Personnel: Convening Authority: Generally

1. it is the convening authority’s responsibility to approve and fund necessary experts requested by the defense or to provide suitable substitutes

Core Criminal Law Subjects: Evidence: Generally

1. the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe

Core Criminal Law Subjects: Witnesses: Generally

1. the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe
2. the inability to locate a necessary witness is a valid reason for delay in an Article 10, UCMJ, speedy trial analysis; this rule applies to expert consultants

Core Criminal Law Subjects: Witnesses: Experts

1. upon a proper showing of necessity, an accused is entitled to expert assistance to prepare a defense
2. when an accused considers the employment of an expert at government expense appropriate, he must submit a request to the convening authority to authorize the employment and to fix the compensation for the expert before employing her; an accused may request any particular expert, including a government expert; if he is entitled to an expert, the government must provide the named expert or a suitable substitute
3. although the government often may suggest to the defense an appropriate expert from government resources, it is not the prosecution’s duty to locate defense experts; it is the defense counsel’s duty to provide the convening authority with the names of the experts the defense wishes the government to employ on its behalf; it is the convening authority’s responsibility to approve and fund necessary experts requested by the defense or to provide suitable substitutes
4. the prosecution’s good faith attempts to locate expert consultants for the defense does not relieve the defense of its responsibility to locate defense experts; a defense counsel is responsible for doing his or her homework
5. the inability to locate a necessary witness is a valid reason for delay in an Article 10, UCMJ, speedy trial analysis; this rule applies to expert consultants

Core Criminal Law Subjects: Witnesses: Production of

1. when an accused considers the employment of an expert at government expense appropriate, he must submit a request to the convening authority to authorize the employment and to fix the compensation for the expert before employing her; an accused may request any particular expert, including a government expert; if he is entitled to an expert, the government must provide the named expert or a suitable substitute
2. although the government often may suggest to the defense an appropriate expert from government resources, it is not the prosecution’s duty to locate defense experts; it is the defense counsel’s duty to provide the convening authority with the names of the experts the defense wishes the government to employ on its behalf; it is the convening authority’s responsibility to approve and fund necessary experts requested by the defense or to provide suitable substitutes; it is the convening authority’s responsibility to approve and fund necessary experts requested by the defense or to provide suitable substitutes
3. the prosecution’s good faith attempts to locate expert consultants for the defense does not relieve the defense of its responsibility to locate defense experts; a defense counsel is responsible for doing his or her homework

Trial Stages: Initial Review: Preparation of Record of Trial

1. the UCMJ requires a complete record of the proceedings and testimony of a general court-martial only when the adjudged sentence includes a punitive discharge or any other punishment which exceeds that which may otherwise be adjudged by a special court-martial; however, neither Article 54, UCMJ, nor RCM 1103 require a complete or verbatim record in cases such as the initial trial in this case, when the charges were withdrawn before a sentence was adjudged

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

1. whether an accused was denied his right to a speedy trial under Article 10, UCMJ, is a question of law that an appellate court reviews de novo, deferring to the military judge’s findings of fact unless those findings are clearly erroneous
2. in an appellate court’s examination of reasonable diligence in bringing the charges to trial under Article 10, UCMJ, it must remain mindful that it is looking at the proceeding as a whole and not mere speed, and it must give substantial deference to the military judge’s findings of fact unless they are clearly erroneous; however, it is the government’s burden to show due diligence, and it is the government’s responsibility to provide evidence showing the actions necessitated and executed in a particular case justified delay when an accused was in pretrial confinement
3. an appellate court determines whether the prosecution was reasonably diligent in bringing the charges to trial under Article 10, UCMJ, by employing the four-factor test articulated by the Supreme Court in Barker v. Wingo, 407 US 514 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant; none of these factors alone are a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial

Miscellaneous Matters: Speedy Trial: Article 10

1. under Article 10, UCMJ, when any person subject to the UCMJ is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him; Article 10 is a fundamental, substantial, personal right that is designed to ensure that the accused knows the reason for the restraint of his liberty, and to protect him, while under restraint, from unreasonable or oppressive delay in disposing of a charge of alleged wrongdoing, either by trial or by dismissal
2. whether an accused was denied his right to a speedy trial under Article 10, UCMJ, is a question of law that an appellate court reviews de novo, deferring to the military judge’s findings of fact unless those findings are clearly erroneous
3. Article 10, UCMJ, does not demand constant motion but does impose on the government the standard of reasonable diligence in bringing the charges to trial
4. in an appellate court’s examination of reasonable diligence in bringing the charges to trial under Article 10, UCMJ, it must remain mindful that it is looking at the proceeding as a whole and not mere speed, and it must give substantial deference to the military judge’s findings of fact unless they are clearly erroneous; however, it is the government’s burden to show due diligence, and it is the government’s responsibility to provide evidence showing the actions necessitated and executed in a particular case justified delay when an accused was in pretrial confinement
5. an appellate court determines whether the prosecution was reasonably diligent in bringing the charges to trial under Article 10, UCMJ, by employing the four-factor test articulated by the Supreme Court in Barker v. Wingo, 407 US 514 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant; none of these factors alone are a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial
6. the length of delay is measured under Article 10, UCMJ, as it is for the Sixth Amendment: from the date an accused enters pretrial confinement until the commencement of the trial on the merits
7. a delay of 451 days from pretrial confinement to trial on the merits is sufficient to trigger a full Barker v. Wingo (407 US 514 (1972)) speedy trial analysis under Article 10, UCMJ
8. in a Barker v. Wingo (407 US 514 (1972)) speedy trial analysis under Article 10, UCMJ, a deliberate attempt to delay a trial in order to hamper the defense should be weighted heavily against the government; a more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered because the ultimate responsibility for such circumstances must rest with the government rather than with the defendant; and finally, a valid reason, such as a missing witness, should serve to justify appropriate delay
9. the inability to locate a necessary witness is a valid reason for delay in an Article 10, UCMJ, speedy trial analysis; this rule applies to expert consultants
10. determining whether there was an attempt to tamper with witnesses is a valid reason for a delay in an Article 10, UCMJ, speedy trial analysis
11. in an Article 10, UCMJ, speedy trial analysis, prejudice is assessed in light of the three recognized interests of an accused which the speedy trial right was designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired; the inability of a defendant to adequately prepare his case is the most serious interest to be considered when reviewing alleged speedy trial violations for prejudice because the inability of an accused adequately to prepare his case skews the fairness of the entire system; and with respect to anxiety, the concern is not with the normal anxiety and concern experienced by an individual in pretrial confinement, but rather with some degree of particularized anxiety and concern greater than the normal anxiety and concern associated with pretrial confinement
12. in this case, although there was a lengthy delay in bringing the case to trial and appellant did make several demands for a speedy trial, there was no Article 10, UCMJ, speedy trial violation where there were legitimate reasons for the delay, there was no evidence that the defense was impaired, and there was no evidence indicating that the government was engaged in a deliberate attempt to delay the trial in order to hamper the defense