U.S. v. Warda, 84 M.J. 83

Military Justice Personnel: Military Judge: Discretion

1. (in this case, the military judge abused his discretion in denying appellant's motion to dismiss or abate the proceedings pursuant to RCM) 703(f) (now RCM 703(e)) on the ground that the government could not produce the records of the complaining witness's where (1) the complaining witness refused to consent to disclosure, (2) the complaining witness was the sole government witness and thus her credibility was matter of central importance to case, (3) her participation in immigration system could provide a significant motive for her to fabricate allegations against appellant if her continued presence in US following expiration of her conditional permanent resident card was based on claim that she was victim of sexual assault, and (4) the military judge made no findings of fact and drew no conclusions to undermine appellant's defense theory that the evidence was exculpatory)
2. a military judge has broad discretion under RCM 703(f) (now RCM 703(e)) in determining whether an adequate substitute exists for evidence destroyed, lost, or otherwise not subject to compulsory process

Trial Stages: Pretrial: Discovery

1. at the time of appellant's court-martial, RCM 703(f) (now RCM 703(e)) provided that each party was entitled to the production of evidence that is relevant and necessary; however, notwithstanding this provision, a party is not entitled to the production of evidence which was destroyed, lost, or otherwise not subject to compulsory process
2. if relevant and necessary evidence is of such central importance to an issue that is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party
3. the moving party for the production of evidence that is relevant and necessary under RCM 703 must show that what is being requested actually exists
4. in this case, appellant established the existence of documentation of the complaining witness's immigration status in the US for the purposes of his request for production of such records under RCM 703(f) (now RCM 703(e)), despite the refusal by the US Customs and Immigration Service to admit or deny existence of such records where (1) the complaining witness had obtained a conditional permanent resident card and came to US to live with appellant after they married, (2) she continued to reside in US after her conditional permanent resident card expired and thus would have had further contacts with immigration officials to adjust her status, and (3) she did not object to the military judge and government seeing her file, but testified that she would not consent to disclosure after some people from immigration advised her against it
5. a party seeking relief under RCM 703(f) (now RCM 703(e)) must show that the unavailable evidence is essential to a fair trial
6. (in this case, the military judge abused his discretion in denying appellant's motion to dismiss or abate the proceedings pursuant to RCM) 703(f) (now RCM 703(e)) on the ground that the government could not produce the records of the complaining witness's where (1) the complaining witness refused to consent to disclosure, (2) the complaining witness was the sole government witness and thus her credibility was matter of central importance to case, (3) her participation in immigration system could provide a significant motive for her to fabricate allegations against appellant if her continued presence in US following expiration of her conditional permanent resident card was based on claim that she was victim of sexual assault, and (4) the military judge made no findings of fact and drew no conclusions to undermine appellant's defense theory that the evidence was exculpatory)
7. (in determining whether there is an adequate substitute for unavailable evidence sought via a motion for production under RCM 703(f) (now RCM 703(e), courts have looked to whether there is a comparable substitute; whether an adequate substitute exists for lost or destroyed evidence depends upon the purpose of the evidence)
8. in this case, the military judge's grant of substantial leeway in appellant's cross-examination of the complaining witness was not an adequate substitute for the records of the complaining witness's immigration file that the witness refused to consent to disclosure for purposes of appellant's motion to dismiss or abate proceedings where (1) the purpose of the request for the complaining witness's was to impeach her credibility and show motive to fabricate allegations by showing that she remained in the US following the expiration of conditional permanent resident card as a victim of sexual abuse, (2) she was the government's sole witness and thus her credibility was central issue in case, and (3) absent this evidence, appellant was unable to impeach her testimony that she came to US only to be with appellant after they married and that she did not know she could extend her stay if she alleged domestic abuse
9. if a continuance or other relief cannot produce the missing evidence sought under a motion for production, the remaining remedy for a violation of RCM 703 (f) (now 703(e)) is abatement of the proceedings

Trial Stages: Merits: Motions

1. the moving party for the production of evidence that is relevant and necessary under RCM 703 must show that what is being requested actually exists
2. a party seeking relief under RCM 703(f) (now RCM 703(e)) must show that the unavailable evidence is essential to a fair trial

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

1. a military judge's failure to abate proceedings is reviewed by an appellate court for an abuse of discretion; the abuse of discretion standard calls for more than a mere difference of opinion, but instead occurs when the military judge's findings of fact are clearly erroneous, the court's decision is influenced by an erroneous view of the law, or the military judge's decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; absent clear error, an appellate court are bound by the military judge's findings of fact
2. a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, 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