U.S. v. Jacinto, 81 M.J. 350

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. under Article 40, UCMJ, a military judge for reasonable cause may grant a continuance to any party for such time, and as often, as may appear to be just, and when ruling on a continuance motion, the military judge may consider a variety of factors
2. MRE 513 [the military’s psychotherapist-patient privilege] allows a military judge to examine the evidence of records or communications of a patient other than the accused, or a proffer thereof, in camera, if such examination is necessary to rule on the production or admissibility of such protected records or communications

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay is an abuse of discretion

Core Criminal Law Subjects: Evidence: Privileges › Psychotherapist-patient privileges

1. MRE 513 [the military’s psychotherapist-patient privilege] allows a military judge to examine the evidence of records or communications of a patient other than the accused, or a proffer thereof, in camera, if such examination is necessary to rule on the production or admissibility of such protected records or communications

Trial Stages: Appeals: Remedies › Remand

1. where the record before an appellate court was unclear and incomplete with respect to a military judge’s factual findings on a motion for a continuance in a GCM where appellant was charged with rape and sexual abuse of a child, a remand to the lower court was necessary for further factual development of the record where (1) the record omitted five pages of the victim's hospital records that were reviewed by defense forensic psychologist and that missing information may have been important to the disposition of the case because the defense forensic psychologist's assessment of the hospital records directly contradicted the military judge's assessment of, and factual findings regarding, the same records, and (2) where the record omitted information that the military judge ordered the government and the hospital to produce to resolve the questions surrounding the victim’s diagnosis and prescription for psychotic agitation

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

1. an appellate court reviews a military judge’s decision to deny a motion for a continuance, or to deny a motion for in camera review of records, for an abuse of discretion; as part of this review, the reviewing court examines the military judge’s findings of fact for clear error; the military judge clearly errs when there is no evidence to support the finding, or although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed
2. when a military judge abuses his discretion denying a continuance or denying in camera review, an appellate court will not grant relief unless the appellant suffers prejudice