U.S. v. Jacinto, 86 M.J. 349

First Principles: Constitutional Matters: Due Process

1. a DuBay hearing must afford an accused due process, and at the very least, accused persons should have notice of the post-trial hearing, the right to be heard at the proceeding, the right to present witnesses and be represented by counsel, have an opportunity to cross-examine witnesses, and have a verbatim record of the proceedings

Military Justice Personnel: Military Judge: Discretion

1. when a military judge abuses his discretion denying a continuance, an appellate court will not grant relief unless the appellant suffers prejudice; that is, the error must materially prejudice the substantial rights of the accused, and where no harmful consequence resulted from denial of a continuance, there is no ground for complaint

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. in this case, where the CAAF sought answers to two questions in its remand order, and where with the assistance of the DuBay judge, the CCA answered both questions, the CCA complied with the CAAF's remand order
2. a DuBay hearing must afford an accused due process, and at the very least, accused persons should have notice of the post-trial hearing, the right to be heard at the proceeding, the right to present witnesses and be represented by counsel, have an opportunity to cross-examine witnesses, and have a verbatim record of the proceedings

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, even if the DuBay judge violated appellant's constitutional rights by not allowing him to cross-examine a witness, any error was harmless beyond a reasonable doubt where (1) the record indicates that the proposed line of defense questioning would not have elicited relevant information, (2) the witness's testimony was based on review of written records and not his independent recollection of events, and (3) the DuBay judge was already aware of an ex parte communication from the witness to the judge about an attempt by the victim's counsel to discourage the witness from testifying
2. an appellate court reviews questions of prejudice de novo
3. assuming that the military judge abused his discretion in denying a defense request for a continuance, appellant was not prejudiced by the error where (1) a continuance would not have given appellant's trial defense counsel any substantive new material to attack the victim's credibility, and (2) there was insufficient evidence in the victim's hospital records for the defense to develop and pursue a psychotic agitation defense even if the defense had more time prior to trial to examine those records; as such, there was no harmful consequence that resulted from the denial of a continuance and therefore the error was harmless

Trial Stages: Appeals: Remedies › DuBay/Factfinding hearing

1. in this case, where the CAAF sought answers to two questions in its remand order, and where with the assistance of the DuBay judge, the CCA answered both questions, the CCA complied with the CAAF's remand order
2. a DuBay hearing must afford an accused due process, and at the very least, accused persons should have notice of the post-trial hearing, the right to be heard at the proceeding, the right to present witnesses and be represented by counsel, have an opportunity to cross-examine witnesses, and have a verbatim record of the proceedings

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

1. an appellate court reviews questions of prejudice de novo
2. when a military judge abuses his discretion denying a continuance, an appellate court will not grant relief unless the appellant suffers prejudice; that is, the error must materially prejudice the substantial rights of the accused, and where no harmful consequence resulted from denial of a continuance, there is no ground for complaint