U.S. v. Bench, 82 M.J. 388

First Principles: Constitutional Matters: Confrontation

1. the Confrontation Clause of the Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him
2. the confrontation right is a procedural guarantee that ensures that any testimony presented to a jury be tested through the crucible of cross-examination; the essential elements of the confrontation right require that the accused have an opportunity to cross-examine the witness, that the witness take an oath to tell the truth, and that the jury be able to observe the witness’s demeanor
3. the Confrontation] Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee; it commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination; the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose infirmities in a witness’s testimony through cross-examination; a full and fair opportunity to cross-examine generally guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact, because it is always more difficult to tell a lie about a person to his face than behind his back
4. an exception to the general rule requiring face-to-face confrontation permits a child witness under certain circumstances to testify via closed-circuit television, without any face-to-face interaction with the accused, where all the other elements of the confrontation right including oath, cross-examination, and observation of the witness’s demeanor were present; remote testimony does not infringe on an accused’s confrontation right if it is necessary as a matter of public policy
5. the Confrontation Clause protects a procedural right that seeks reliability by testing in the crucible of cross-examination; that right is satisfied when the individual testifying takes an oath and is subject to cross-examination that is observed by the panel

Core Criminal Law Subjects: Witnesses: Child Witness

1. an exception to the general rule requiring face-to-face confrontation permits a child witness under certain circumstances to testify via closed-circuit television, without any face-to-face interaction with the accused, where all the other elements of the confrontation right including oath, cross-examination, and observation of the witness’s demeanor were present; remote testimony does not infringe on an accused’s confrontation right if it is necessary as a matter of public policy
2. in this case, any Confrontation Clause error in the admission of the remote testimony of appellant’s child, who had been misled by the trial counsel who told the child that appellant was not watching his remote live testimony, was not plain error where each of the three essential elements of the confrontation right was present when appellant’s child testified remotely during the court-martial: appellant had an opportunity to cross-examine the witness, the witness had taken an oath to tell the truth, and the jury members were able to observe the witness’s demeanor; although the trial counsel’s misleading statements might have lessened the pressure appellant’s child felt to tell the truth, the essential elements of appellant’s confrontation right were still vindicated; furthermore, there was no precedent from any court holding that the Sixth Amendment confrontation right required a child testifying remotely to be aware that the defendant was viewing his or her testimony, and the absence of any controlling precedent strongly undermines appellant’s argument that the military judge committed plain or obvious error by admitting his child’s testimony; accordingly, it should not have been clear or obvious to the military judge that the admission of the child’s testimony would materially prejudice appellant’s Sixth Amendment rights; in other words, whether the Sixth Amendment is violated when a counsel misleads a witness who is testifying remotely about the accused’s presence was an open question with no clear and obvious answer in the military justice system, and as such, appellant cannot establish that the military judge’s admission of his child’s live remote testimony was plainly erroneous

Core Criminal Law Subjects: Witnesses: Confrontation

1. the Confrontation Clause of the Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him
2. the confrontation right is a procedural guarantee that ensures that any testimony presented to a jury be tested through the crucible of cross-examination; the essential elements of the confrontation right require that the accused have an opportunity to cross-examine the witness, that the witness take an oath to tell the truth, and that the jury be able to observe the witness’s demeanor
3. the Confrontation Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee; it commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination; the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose infirmities in a witness’s testimony through cross-examination; a full and fair opportunity to cross-examine generally guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact, because it is always more difficult to tell a lie about a person to his face than behind his back
4. an exception to the general rule requiring face-to-face confrontation permits a child witness under certain circumstances to testify via closed-circuit television, without any face-to-face interaction with the accused, where all the other elements of the confrontation right including oath, cross-examination, and observation of the witness’s demeanor were present; remote testimony does not infringe on an accused’s confrontation right if it is necessary as a matter of public policy
5. the Confrontation Clause protects a procedural right that seeks reliability by testing in the crucible of cross-examination; that right is satisfied when the individual testifying takes an oath and is subject to cross-examination that is observed by the panel
6. in this case, any Confrontation Clause error in the admission of the remote testimony of appellant’s child, who had been misled by the trial counsel who told the child that appellant was not watching his remote live testimony, was not plain error where each of the three essential elements of the confrontation right was present when appellant’s child testified remotely during the court-martial: appellant had an opportunity to cross-examine the witness, the witness had taken an oath to tell the truth, and the jury members were able to observe the witness’s demeanor; although the trial counsel’s misleading statements might have lessened the pressure appellant’s child felt to tell the truth, the essential elements of appellant’s confrontation right were still vindicated; furthermore, there was no precedent from any court holding that the Sixth Amendment confrontation right required a child testifying remotely to be aware that the defendant was viewing his or her testimony, and the absence of any controlling precedent strongly undermines appellant’s argument that the military judge committed plain or obvious error by admitting his child’s testimony; accordingly, it should not have been clear or obvious to the military judge that the admission of the child’s testimony would materially prejudice appellant’s Sixth Amendment rights; in other words, whether the Sixth Amendment is violated when a counsel misleads a witness who is testifying remotely about the accused’s presence was an open question with no clear and obvious answer in the military justice system, and as such, appellant cannot establish that the military judge’s admission of his child’s live remote testimony was plainly erroneous

Core Criminal Law Subjects: Witnesses: Oaths

1. MRE 603 requires that before testifying, a witness must give an oath or affirmation to testify truthfully, and it must be in a form designed to impress that duty on the witness’s conscience; MRE 603 requires no special verbal formula, but instead requires that the oath be meaningful to the witness, including a child witness, and impress upon the witness the duty to tell the truth

Trial Stages: Appeals: Preservation of Error / Plain Error

1. plain error occurs where (1) there is error, (2) the error was plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused
2. in this case, any Confrontation Clause error in the admission of the remote testimony of appellant’s child, who had been misled by the trial counsel who told the child that appellant was not watching his remote live testimony, was not plain error where each of the three essential elements of the confrontation right was present when appellant’s child testified remotely during the court-martial: appellant had an opportunity to cross-examine the witness, the witness had taken an oath to tell the truth, and the jury members were able to observe the witness’s demeanor; although the trial counsel’s misleading statements might have lessened the pressure appellant’s child felt to tell the truth, the essential elements of appellant’s confrontation right were still vindicated; furthermore, there was no precedent from any court holding that the Sixth Amendment confrontation right required a child testifying remotely to be aware that the defendant was viewing his or her testimony, and the absence of any controlling precedent strongly undermines appellant’s argument that the military judge committed plain or obvious error by admitting his child’s testimony; accordingly, it should not have been clear or obvious to the military judge that the admission of the child’s testimony would materially prejudice appellant’s Sixth Amendment rights; in other words, whether the Sixth Amendment is violated when a counsel misleads a witness who is testifying remotely about the accused’s presence was an open question with no clear and obvious answer in the military justice system, and as such, appellant cannot establish that the military judge’s admission of his child’s live remote testimony was plainly erroneous

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

1. when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; waiver usually occurs when there is an intentional relinquishment or abandonment of a known right, but waiver can occur by operation of law
2. when an appellant fails to raise a Confrontation Clause objection at trial, an appellate court considers the particular circumstances of the case to determine whether there was waiver, but applies a presumption against finding a waiver of constitutional rights

Trial Stages: Appeals: Waiver

1. when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; waiver usually occurs when there is an intentional relinquishment or abandonment of a known right, but waiver can occur by operation of law
2. when an appellant fails to raise a Confrontation Clause objection at trial, an appellate court considers the particular circumstances of the case to determine whether there was waiver, but applies a presumption against finding a waiver of constitutional rights
3. in this case, appellant did not intentionally relinquish his claim that his Confrontation Clause rights were violated when the trial counsel misled appellant’s child by telling him that appellant was not watching his remote live testimony where nothing in the record suggests anything more than an unintentional failure by appellant to make a timely assertion of his rights; thus, the claim was not waived
4. RCM 905(e) (MCM 2016 ed.) provides that Confrontation Clause claims must be raised before the court-martial adjourned for that case, and, unless otherwise provided in the MCM, failure to do so shall constitute waiver; however, there has long been disagreement in CAAF’s precedent about whether the word “waived” in RCM 905(e) actually means “waived,” or instead means “forfeited” (the failure to preserve an issue by timely objection); regardless how one interprets the word “waived” in RCM 905(e), that rule does not extinguish a claim when there has been plain error; thus, in this case, RCM 905(e) did not extinguish, by operation of law, appellant’s ability to argue for the first time on appeal that the military judge committed plain or obvious error by admitting his son’s testimony