U.S. v. Thompson, 81 M.J. 391

Military Justice Personnel: Military Judge: Discretion

1. an appellate court reviews a military judge’s ruling on an RCM 914 motion 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: Generally

1. RCM 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made
2. the Jencks Act requires the trial 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, CAAF’s Jencks Act case law and that of the Supreme Court informs the analysis of RCM 914 issues
3. if the government, as the opposing party, fails to produce a qualifying statement, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver the qualifying 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
4. not every failure to produce a qualifying statement invokes a RCM 914 remedy; good faith loss or destruction of Jencks Act material and RCM 914 material may excuse the government’s failure to produce statements; 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. the relevant language of RCM 914 requires the government to produce any pertinent statement of a prosecution witness in the possession of the United States; RCM 914 does not apply if the statement is not in the possession of the United States; RCM 914 concerns preservation and disclosure of statements in the government’s possession, not the collection or creation of evidence
6. in this case, where law enforcement chose not to take possession of a government witness’s timeline during a pretrial interview with the witness, this decision did not violate RCM 914 because there was no obligation for law enforcement to create an RCM 914 qualifying statement during its interview of the witness
7. federal circuit courts have generally concluded that the Jencks Act applies only to statements possessed by the prosecutorial arm of the federal government; the prosecutorial arm of the federal government may, in certain cases, include nonfederal entities when the nonfederal entity is acting in concert or at the behest of the federal government as its agent; where the statements are physically held by someone other than a federal prosecutorial agency, such statements are generally not considered in the possession of the United States unless the holder serves as an arm of the United States government
8. RCM 914 applies only to statements possessed by the prosecutorial arm of the federal government or when a nonfederal entity has a joint investigation with the United States; in this case, the party in control of the timeline was a third-party private citizen, not the United States, and therefore the timeline was not subject to RCM 914 production even though the government investigator had access to the timeline during a pretrial interview with the private citizen and avoided collecting it

Trial Stages: Merits: Trial Procedures › Generally

1. RCM 914 (production for statements of witnesses) requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made
2. the Jencks Act requires the trial 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, CAAF’s Jencks Act case law and that of the Supreme Court informs the analysis of RCM 914 issues
3. if the government, as the opposing party, fails to produce a qualifying statement, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver the qualifying 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
4. not every failure to produce a qualifying statement invokes a RCM 914 remedy; good faith loss or destruction of Jencks Act material and RCM 914 material may excuse the government’s failure to produce statements; 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. the relevant language of RCM 914 requires the government to produce any pertinent statement of a prosecution witness in the possession of the United States; RCM 914 does not apply if the statement is not in the possession of the United States; RCM 914 concerns preservation and disclosure of statements in the government’s possession, not the collection or creation of evidence
6. in this case, where law enforcement chose not to take possession of a government witness’s timeline during a pretrial interview with the witness, this decision did not violate RCM 914 because there was no obligation for law enforcement to create an RCM 914 qualifying statement during its interview of the witness
7. federal circuit courts have generally concluded that the Jencks Act applies only to statements possessed by the prosecutorial arm of the federal government; the prosecutorial arm of the federal government may, in certain cases, include nonfederal entities when the nonfederal entity is acting in concert or at the behest of the federal government as its agent; where the statements are physically held by someone other than a federal prosecutorial agency, such statements are generally not considered in the possession of the United States unless the holder serves as an arm of the United States government
8. RCM 914 applies only to statements possessed by the prosecutorial arm of the federal government or when a nonfederal entity has a joint investigation with the United States; in this case, the party in control of the timeline was a third-party private citizen, not the United States, and therefore the timeline was not subject to RCM 914 production even though the government investigator had access to the timeline during a pretrial interview with the private citizen and avoided collecting it

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when a military judge errs in denying a RCM 914 motion, an appellate court determines whether this error prejudiced appellant based on the nature of the right violated

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

1. an appellate court reviews a military judge’s ruling on a RCM 914 motion 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. when a military judge errs in denying a RCM 914 motion, an appellate court determines whether this error prejudiced appellant based on the nature of the right violated