How much is enough.

United States v. Nance, __ M.J. ___, No. 09-0164/AF (C.A.A.F. June 3, 2009).

This case fits within the never ending discussion of what is enough for a provident plea. How much must the accused say, to what extent can the military judge ask leading questions, and what is the effect of the usual “no questions” when the MJ asks either counsel if they want him to ask more questions. If my recollection is correct, most of the recent providency related cases are for violation of Article 134, and the question really relates to what is enough to satisfy the SD/GoD requirement.

For military judges the court has said that you are OK asking leading questions to clarify points already established elsewhere in the record. The court will look to the whole record to decide whether the record is sufficient. It seems that the court is going to apply a balancing test. If the whole providency is nothing but “yes sir,” to a MJ question look for a potential bounce. But if the record is resonant with a stipulation of fact, some inculpatory statements of the accused, then good to go.

Appellant argues that the military judge’s use of leading questions transformed what would otherwise be a provident plea with a sufficient basis in law and fact into an improvident one. Again, we disagree. Although this Court has stressed that the use of leading questions that do no more than elicit “yes” and “no” responses during the providence inquiry is disfavored, United States v. Negron, 60 M.J. 136, 143 (C.A.A.F. 2004) (citing Jordan, 57 M.J. at 238; United States v. Sweet, 42 M.J. 183, 185 (C.A.A.F. 1995); United States v. Lee, 16 M.J. 278, 282 (C.M.A. 1983)), it has never been the law that a military judge’s use of leading questions automatically results in an improvident plea. Rather, we examine the totality of the circumstances of the providence inquiry, including the stipulation of fact, as well as the relationship between the accused’s responses to leading questions and the full range of the accused’s responses during the plea inquiry. See Sweet, 42 M.J. at 185-86 (upholding a military judge’s acceptance of a guilty plea in light of the totality of the circumstances, including the relation between the stipulation of fact and the accused’s “yes” and “no” answers during the plea inquiry).

For trial counsel. It’s your job to protect the record. Asking the judge to ask more questions and get more information from the accused is part of what you need to do.

For defense counsel. Keep doing what you are doing.