U.S. v. Miller, 86 M.J. 188

First Principles: Constitutional Matters: Generally

1. the President has the authority under Article 36, UCMJ, to grant servicemembers greater protections than those guaranteed by the Constitution

First Principles: Constitutional Matters: Right to a Public Trial

1. the Sixth Amendment guarantees the accused in a criminal prosecution the right to a public trial, and this right to a public trial applies to courts-martial
2. the Supreme Court of the United States has made it clear that the Sixth Amendment right to a public trial applies to the actual proof at trial (i.e., the presentation of evidence to the jury), but it has never clarified how far the right extends beyond that core application or articulated a test for determining whether the right applies to specific pretrial hearings
3. the Supreme Court of the United States has confirmed that the Sixth Amendment public trial right does apply to two specific pretrial proceedings, suppression hearings and voir dire
4. neither the Sixth Amendment public trial right nor the RCM 806 public trial right extends to closed hearings conducted pursuant to MRE 412; these hearings have a discrete and limited purpose involving evidentiary determinations and are not part of the trial for purposes of the public trial right; and with respect to RCM 806, that is a general rule that prohibits the closure of courts-martial to the public, and in contrast, MRE 412 is a narrow mandate for closed proceedings in very specific circumstances; following the statutory canon that the specific governs the general, MRE 412 is properly interpreted as an exception to RCM 806's general rule

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if an accused seeks to admit evidence covered by MRE 412, a military judge must conduct a closed hearing to determine whether the evidence may be admitted
2. because neither the Sixth Amendment public trial right nor the RCM 806 public trial right extends to hearings conducted pursuant to MRE 412, a military judge does not err in closing an MRE 412 hearing during the pretrial phase of a court-martial

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. MRE 412 restricts the ability of an accused charged with a sexual offense to introduce evidence about the past sexual activity or predisposition of the alleged victim
2. if an accused seeks to admit evidence covered by MRE 412, a military judge must conduct a closed hearing to determine whether the evidence may be admitted
3. MRE 412 hearings are fundamentally different from suppression hearings and voir dire for several reasons: (1) unlike suppression hearings, the subject matter of a MRE 412 hearing is presumed to be inadmissible and therefore excluded from trial; (2) MRE 412 hearings are not as case critical or potentially dispositive as suppression hearings, but rather typically turn on legal questions; (3) evidence of a specific victim's past sexual behavior or predisposition has little value to the public; (4) if the evidence proffered at a MRE 412 hearing is determined to be admissible, that evidence will be presented in open court during the public portion of the accused's trial; and (5) MRE 412 hearings have no historical tradition of being public as they are relatively new creations involving the exclusion of irrelevant evidence, and historical precedent does not support the public airing of irrelevant evidence
4. an express purpose of MRE 412 is to protect the victims of sexual offenses from embarrassing and degrading cross-examination
5. neither the Sixth Amendment public trial right nor the RCM 806 public trial right extends to closed hearings conducted pursuant to MRE 412; these hearings have a discrete and limited purpose involving evidentiary determinations and are not part of the trial for purposes of the public trial right; and with respect to RCM 806, that is a general rule that prohibits the closure of courts-martial to the public, and in contrast, MRE 412 is a narrow mandate for closed proceedings in very specific circumstances; following the statutory canon that the specific governs the general, MRE 412 is properly interpreted as an exception to RCM 806's general rule

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

1. an appellate court reviews a military judge's decision to close the courtroom for an abuse of discretion
2. finding an abuse of discretion calls for more than a difference of opinion; rather, to constitute an abuse of discretion, the challenged decision must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
3. interpreting the interplay between provisions of the RCM and the MRE is a question of law that an appellate court reviews de novo

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. the President has the authority under Article 36, UCMJ, to grant servicemembers greater protections than those guaranteed by the Constitution

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. a well-established canon of statutory interpretation is that the specific governs the general; this canon is particularly true when there is a comprehensive statutory scheme and the drafters have purposely addressed specific concerns with specific solutions; this canon is often applied when there is a general rule of permission or prohibition that is contradicted by a contrary specific rule; to harmonize the scheme, the specific provision is interpreted as an exception to the general rule