Coast Guard appellate case of interest – and providency

Is a false marriage certificate to claim otherwise unauthorized allowances an official document? No, it would be the presentation of that document as showing an entitlement that is the false statement, not the marriage certificate itself. The court also found the appellant’s plea to a conspiracy to commit a false official statement as improvident. The providency issue seems as much related to the military judge’s questioning method, rather than a factual basis. This was a not untypical plea where the military judge had to help the accused through providency by getting yes / no answers to leading questions.

United States v. McClary.

Here are some stream-of-consciousness thoughts for the defense counsel.

If you want your client to get through providence, then the client needs to be prepared to answer the military judge’s questions him or herself. Use the benchbook, various suggested providence inquiries that are out there, get a prior transcript from a similar case (you or a colleague ought to have one), or benefit from the judges who provide a providency questionnaire in advance of trial.

While you want to get the client through providency to get the deal, you do not have to help the prosecution or the judge beyond what is required to assist the client be provident. If at the end of the trial the providence inquiry is insufficient it isn’t the defense fault and it isn’t the defense role to correct it.

Object to questions that are outside the scope of the plea, especially ones that could expose additional or more severe conduct. Remember, the providence answers are going to be considered in sentencing. The client still retains his right to silence and a trial to any aggravating factors not plead to or addressed in the stipulation, to any charges left after mixed pleas, and to charges not on the charge sheet.