U.S. v. Tate, 82 M.J. 291

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when confronted with a substantial omission in the transcript, the military judge may employ three remedies for curing substantial omissions and creating a verbatim transcript prior to the conclusion of the court-martial: declaring a mistrial, reconstructing the record, and starting anew
2. when confronted with a substantial omission in the transcript, the military judge may employ three remedies for curing substantial omissions and creating a verbatim transcript prior to the conclusion of the court-martial: declaring a mistrial, reconstructing the record, and starting anew
3. the first method of remedying the loss of a verbatim recording is for the military judge to declare a mistrial; since 2019, RCM 1112(d)(3)(D) has authorized a military judge to cure a defective or incomplete record of trial by declaring a mistrial as to the affected specifications if the error was raised by motion or on appeal by the defense
4. a second common remedy for lost recordings is for the military judge to reconstruct the record; a reconstruction occurs when the necessary actors—the military judge, with the assistance of the parties, and relevant witnesses—act promptly and thoroughly to recreate the lost testimony through their collective memories and notes; the President expressly authorized military judges to reconstruct incomplete or defective records of trial in RCM 1112(d)(3)(A)
5. the third remedy military judges have to cure nonverbatim transcripts is starting anew; when this remedy is employed, the military judge expunges the lost proceedings and restarts the unrecorded session from scratch; this remedy is frequently paired with an express instruction to the panel to disregard the unrecorded testimony or a statement from the military judge saying she has disregarded the unrecorded proceedings to start anew; what distinguishes the remedy of starting anew from the remedy of reconstruction is that when starting anew, the original lost proceeding is expunged; it therefore would not matter whether the second proceeding captures the substance of the lost recording or whether the witnesses repeated the same testimony; the original proceeding becomes not just irrelevant, but legally null and void; the Discussion to RCM 1112(d)(3) provides that if either party objects to the summary or reconstruction, the trial should proceed anew, and the proceedings repeated from the point where the interruption began (but as to this remedy in this case, CAAF declined to decide whether starting anew, at least as it was invoked during the sentencing phase, was authorized under RCM 915(a), or more generally under the military judge’s inherent power to control court‑martial proceedings; rather, it assumed—without deciding—that the judicially crafted remedy of starting anew was a permissible option to cure the lost recording in this case)

Military Justice Personnel: Convening Authority: Generally

1. if a military judge fails to cure a substantial omission in the record of trial and a nonverbatim transcript results, RCM 1103(f) (2016 ed) is triggered and the remedy lies within the sole discretion of the convening authority; if, because of loss of recording or notes, or other reasons, a verbatim transcript cannot be prepared when required by 1103(b)(2)(B), a record which meets the requirements of (b)(2)(C) of this rule shall be prepared and the convening authority may: (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved; or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial

Trial Stages: Initial Review: Preparation of Record of Trial

1. although the Rules for Courts-Martial generally require the record of trial to include a verbatim transcript of all sessions except sessions closed for deliberations in serious cases—and impose consequences when that requirement cannot be satisfied—until 2019 the Rules did not authorize any remedial actions that a court could perform to cure a nonverbatim transcript; in the absence of any guidance from the Rules, military courts have long authorized three potential solutions when court recording devices fail: (1) declaring a mistrial; (2) reconstructing the record of trial; and (3) starting anew
2. (the Rules for Courts-Martial mandate the preparation of a verbatim transcript for any general court-martial where the adjudged sentence includes confinement for twelve months or more or a bad-conduct discharge
3. a verbatim transcript must include all proceedings including sidebar conferences, arguments of counsel, and rulings and instructions by the military judge
4. a verbatim transcript need not be actually verbatim but will suffice when it is substantially verbatim
5. the lack of a verbatim transcript for any general court-martial where the adjudged sentence includes confinement for twelve months or more or a bad-conduct discharge is a jurisdictional error that cannot be waived
6. to determine whether a transcript is verbatim, the threshold question is whether the omitted material was qualitatively or quantitatively substantial; an omission is qualitatively substantial when it directly relates to the sufficiency of the government’s evidence on the merits and cannot be recalled with any degree of fidelity; omissions are quantitatively substantial unless the totality of the omissions in the record becomes so unimportant and so uninfluential when viewed in light of the whole record, that it approaches nothingness
7. in this case, a recording device’s failure to capture the sentencing proceedings, including approximately four hours of witness testimony and the introduction of multiple documentary exhibits, resulted in loss that was both qualitatively and quantitatively substantial; first, the omissions encompassed the military judge’s explanation of appellant’s rights, the entiretyof the government’s case, and the start of appellant’s sentencing case; second, the omissions were quantitatively substantial where they were of such a scope that it is impossible to suggest that the omitted recordings could be considered approaching nothingness; accordingly, the failed recording resulted in substantial omissions in the record such that the record was not verbatim
8. when confronted with a substantial omission in the transcript, the military judge may employ three remedies for curing substantial omissions and creating a verbatim transcript prior to the conclusion of the court-martial: declaring a mistrial, reconstructing the record, and starting anew
9. the first method of remedying the loss of a verbatim recording is for the military judge to declare a mistrial; since 2019, RCM 1112(d)(3)(D) has authorized a military judge to cure a defective or incomplete record of trial by declaring a mistrial as to the affected specifications if the error was raised by motion or on appeal by the defense
10. a second common remedy for lost recordings is for the military judge to reconstruct the record; a reconstruction occurs when the necessary actors—the military judge, with the assistance of the parties, and relevant witnesses—act promptly and thoroughly to recreate the lost testimony through their collective memories and notes; the President expressly authorized military judges to reconstruct incomplete or defective records of trial in RCM 1112(d)(3)(A)
11. there are limits to reconstructing a verbatim record; if the reconstruction results in a record that is equivocal such that it leaves uncertaintyas to the substance of the lost testimony, it will not suffice
12. the third remedy military judges have to cure nonverbatim transcripts is starting anew; when this remedy is employed, the military judge expunges the lost proceedings and restarts the unrecorded session from scratch; this remedy is frequently paired with an express instruction to the panel to disregard the unrecorded testimony or a statement from the military judge saying she has disregarded the unrecorded proceedings to start anew; what distinguishes the remedy of starting anew from the remedy of reconstruction is that when starting anew, the original lost proceeding is expunged; it therefore would not matter whether the second proceeding captures the substance of the lost recording or whether the witnesses repeated the same testimony; the original proceeding becomes not just irrelevant, but legally null and void; the Discussion to RCM 1112(d)(3) provides that if either party objects to the summary or reconstruction, the trial should proceed anew, and the proceedings repeated from the point where the interruption began (but as to this remedy in this case, CAAF declined to decide whether starting anew, at least as it was invoked during the sentencing phase, was authorized under RCM 915(a), or more generally under the military judge’s inherent power to control court‑martial proceedings; rather, it assumed—without deciding—that the judicially crafted remedy of starting anew was a permissible option to cure the lost recording in this case)
13. in this case, after the court’s recording device failed during appellant’s sentencing hearing, the military judge stated that he was going to start appellant’s sentencing hearing anew, but contrary to his stated intent, the military judge indicated during the second sentencing hearing that he would only consider the testimony of the government’s witnesses that fell within the scope of their unrecorded testimony from the previous day; this choice to disregard testimony from the second hearing if it went beyond the witnesses’ lost testimony from the first hearing resulted in a hybrid proceeding that did notstart the proceedings anew but was instead dependent on, and intrinsically tied to, the unrecorded testimony from the first day of sentencing; the military judge’s reliance upon the unrecorded testimony to frame his sentencing decision failed to remedy the nonverbatim transcript, creating a jurisdictional error
14. if a military judge fails to cure a substantial omission in the record of trial and a nonverbatim transcript results, RCM 1103(f) (2016 ed) is triggered and the remedy lies within the sole discretion of the convening authority; if, because of loss of recording or notes, or other reasons, a verbatim transcript cannot be prepared when required by 1103(b)(2)(B), a record which meets the requirements of (b)(2)(C) of this rule shall be prepared and the convening authority may: (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved; or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial

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

1. whether a transcript is substantially verbatim is a question of law that this Court reviews de novo