1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense objection) gets the defense and government, and court to agree there was an error and to get a new sentencing hearing.[1]

2. It is NEVER EVER a good idea for an accused (or one of his witnesses)[2] to impeach the verdict. Gone are the days when we could legally seek reconsideration of the findings, even through sentencing. The legitimate tactic at the time was to present the accused’s version of events through his unsworn and then argue that the members may wish to reconsider the findings.

While impeaching the verdict is prohibited it is usually not a good idea to poke a finger in the eye of the members who have just convicted you and now are giving a sentence.

Although an accused is provided a wide berth in the content of his unsworn statement, there are certain limits in what matters he may raise before the sentencing authority. United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998). Specifically, the Court of Appeals for the Armed Forces has recognized that an accused is generally prohibited from impeaching the findings of the factfinder.

United States v. Porter, No. ARMY 20110470, 2013 CCA LEXIS 946, at *8 (A. Ct. Crim. App. Oct. 31, 2013). Note, Porter arose from TC arguing that the accused had failed to impeach the verdict, “Appellant now complains that trial counsel’s repeated comments during a sentencing argument that appellant never denied the assault during his unsworn statement was improper argument. We agree.”

[1] There may have been a get-out for the prosecution, but it was likely not raised at trial or on appeal–else the court would have addressed it.

[2] See, e.g., United States v. Westcott, ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (unpub.) rev. denied 82 M.J. 438 (C.A.A.F. 2022).

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

This reads as if the military judge intrudes himself to ask questions intended to elicit facts and testimony to support a finding on one or elements. In other words the “second” trial counsel role. To paraphrase:

[I] note at the outset that this [reads as if this] military judge [might be] more aggressive in his use of “clarifying questions” than many judges would dare. . . .In the military, a judge may not abandon his role as an impartial party and assist in the conviction of a specific accused.”

United States v. Reynolds, 24 MJ 261, 264 (C.M.A. 1987).

A military judge has a difficult balancing act which in Ramos, the court called the judges’ tight-rope and the maintaining of the “full fulcrum.”

This Court has commented on the tightrope over which a judge must tread in assuring, on the one hand, that court-martial members are provided the information that they need, while, on the other, “scrupulously avoiding even the slightest appearance of partiality.” United States v. Shackelford, 2 M.J. 17, 19 (CMA 1976); see United States v. Dock, 40 M.J. 112 (CMA 1994); United States v. Clower, 23 U.S.C.M.A. 15, 48 C.M.R. 307 (1974).

United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995). And:

There is a strong presumption that a military judge is impartial in the conduct of judicial proceedings. “When a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of [the] trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.” We apply this test from the viewpoint of the reasonable person observing the proceedings. Failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial.

United States v. Foster, 64 M.J. 331, 333 (C.A.A.F. 2007).

Here is a potential teaching point for defense counsel. We all know judges who are perceived to put their thumb on the scales and help out trial counsel (and trial counsel have similar perceptions about other judges helping the defense). Let’s take a look at some other cases. And defense counsel should remember it is OK to object if done in a professional and tactful manner. I have found a need to do that several times. If the defense doesn’t object it’s going to be a waiver/plain error/IAC issue potentially.

[M]military practice and procedure expressly provide for questioning of witnesses by a military judge (see Mil. R. Evid. 614(b), Manual, supra), and our case law requires that it be done in a fair and impartial manner. . . . the mere fact that the answers to these questions may help or hurt one party’s case does not suggest partiality, especially where the military judge makes clear his neutral purpose in asking these questions.

United States v. Cooper, 51 M.J. 247, 250 (C.A.A.F. 1999), but see, United States v. Smith, 52 M.J. 337, 342 (C.A.A.F. 2000)(military judge should not be trying the prosecution’s case).

Mil. R. Evid. 614(b) is apparently broad:

Interrogation by the court-martial. The military judge or members may interrogate witnesses, whether called by the military judge, the members, or a party.

As to the military judge in the Cooper case, the Air Force Court of Criminal Appeals had noted:

There was no objection, on the record, to any of the judge’s comments–therefore, once again, we must approach this issue with a “plain error” analysis. We note at the outset that this military judge was more aggressive in his use of “clarifying questions” than many judges would dare. However, in the absence of objection on the record, it is very difficult to find plain error.

51 M.J. at 249.

Several reasons exist for our conclusion that this is not an extraordinary case requiring reversal of appellant’s conviction. First, defense counsel lodged no objection to the military judge’s curative instructions on the grounds that the judge’s comments further evidenced his bias for the Government. See RCM 801(g) (effect of failure to raise defenses or objections). Moreover, he made no motion to disqualify the military judge from continuing to sit in this case on the basis of these judicial remarks. Third, the judge’s reprimand, although probably unjustified and certainly improper before the members, was no more than a mild rebuke of defense counsel (“having halfway chewed him out”). Finally, the now-challenged comments were couched within unequivocal instructions from the judge protecting appellant from any impermissible use of his comments.

51 M.J. at 250.

Questioning the Witnesses. A military judge must scrupulously avoid “even the slightest appearance of partiality.” A military judge’s “influence . . . is necessarily and properly of great weight,” and his “last word is apt to be the decisive word.” On the other hand, because military judges are more than “mere referees,” it is appropriate for them to take an active part in the trial. Thus, while military judges may not become partisan advocates, they may and “sometimes must ask questions . . . to clear up uncertainties in the evidence or to develop the facts further.”

51 M.J. at 253 (Gierke, J., concurring inpart and in the result).

It seems to me from the cases (mainly members cases) that there are several common threads: a military judge does not err when asking questions to “clarify factual uncertainties,”or “clarify ambiguity,” and a military judge does not err if also seen to be acting in a objectively “fair and impartial manner,” and the defense better object. See, Cooper, supra; Ramos, supra, United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (whether military judge should have recused self is viewed objectively looking at the totality of the circumstances). However, a military judge may err if asking questions to solicit facts to support the elements of the offense. On the one hand the military judge is a facilitator on the other a trial counsel.

We regularly tell members that it is not their job to aid one side or the other, that there are not there to fill in holes in the case. To a large degree there is a level of tolerance from both sides especially with new counsel. However, the fact that counsel are new and inexperienced is not a reason for the military judge to become an additional counsel. Military judges acting as fact-finders ought to subject themselves to a similar admonishment as we give members.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999). We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor. While trial defense counsel failed to request, remind or insist upon an instruction relative to the affirmative defense of consent, it was not his burden to do so. Rather, it was the sua sponte duty of the military judge. United States v. Guitierrez, 64 M.J. 374, 376 (C.A.A.F. 2007)[.]

What should a trial counsel do if the military judge doesn’t say she will instruct on an affirmative defense and the defense counsel doesn’t ask for it, but the trial counsel believes the evidence raises the affirmative defense? Does the trial counsel have an obligation to raise the question at least?

At this point, the military judge interjected and asked 11 foundational questions of the witness. The questions were limited to Major D’s past service as an enlisted Marine in the same MOS as the appellant, his supervisory responsibilities as a Marine Corps gunnery sergeant within that MOS, the total number of years he served within the MOS, and the duties generally assigned within the MOS. Defense counsel did not object to any of the 11 questions asked by the military judge.

The NMCCA did not find the military judge’s laying a foundation for admissibility deprived the accused of a fair trial, in United States v. Davis, NMCCA 200900406 (N-M.C. Ct. Crim. App. 15 December 2009). The court did not opine on why the trial counsel was unprepared to lay a foundation for the witnesses testimony, but did consider the failure of the defense to object as adverse to the accused.

Bottom line to the case: trial counsel need not prepare to lay a foundation for witness testimony or documents, because if they don’t the military judge will do it for them. Teaching point, trial counsel need not be aware of the rules for admission of testimony and laying a foundation, and they need not interview and prepare their witness in advance of trial.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued: MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head. MEMBER [Lieutenant Colonel (LTC) MEYER]: I am wondering, ma’am, if we can ask for additional witnesses to be called. MJ: The answer to that is, you’ve heard all of the evidence in the case. Neither party objected to the military judge’s ruling, or asked for additional information. The military judge then began her instructions to the members, followed by closing arguments of counsel.

Note Judge Leeker didn’t ask who they wanted to call and why. And neither counsel objected! At a minimum the counsel needed to object to the judge failing to at least inquire into the name and purpose. If the MJ does asks but denies the witness, there is at least some indication for argument about something troubling the members, and of course the issue is better preserved. In addition,

While the military judge may properly exercise his or her discretion and deny a member’s request for additional evidence, our superior court has set forth a non-exclusive list of factors the judge must consider prior to doing so. Difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be subject to a claim of privilege; and the objections of the parties to reopening the evidence are among the factors trial judge must consider.

Trial defense counsel did track down the member and figure out what the issue was.

Neither side addressed the preliminary question of whether it is appropriate for this court to consider extra-record matters in this instance. We hold that the members’ request for additional evidence is not a collateral matter. As such, we will not consider the extra record appellate submissions concerning the identity of the witness the members wanted to request, as well as the proffered substance of that witness’ testimony in deciding this issue.

Although they did consider the matters on a Grosty IAC claim relating to the requested witness. The court takes the position that the submitted matters are extra-record and can’t be considered to :

to support or reverse a conviction . . . .” United States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973) (quoting United States v. Lanford, 20 C.M.R. 87, 95 (C.M.A. 1955); see also United States v. Stokes, 65 M.J. 651, 653-55 (Army Ct. Crim. App. 2007) and numerous cases cited therein.

But while the court does a good job of analyzing situations when post trial submissions may be extra-record but considered, they seem to miss the prejudice shown or not shown by the documents. Here the court found error, but then apparently ignored the extra-record documents when deciding the appellant had not been prejudiced.

This evidence was never put before the members and was not subject to cross-examination. See id. Accordingly, we will not consider it.

But isn’t that the point of a prejudice analysis? If the evidence had been presented could there have been a different result. Notably the court does seem to conclude that even had the evidence been introduced there would not have been a different result. They considered the matters in the Grosty IAC claim and determined there was no IAC, impliedly saying that the lack of the evidence was not prejudicial. Odd.

United States v. Thurston. This is another in the “new matter” column for post-trial SJAR’s addendum. Apparently the SJA included a chronology of post-trial events which was not served on the defense.

Each of the time periods provided in the chronology contained an attendant explanation. Included in the chronology was an explanation that: on 18 February 2009, the accused and his counsel had met with the convening authority; and from 1 April 2009 to 30 June 2009, had been spent coordinating with the family of the victim “on clemency for the accused.” As acknowledged in appellee’s brief, the two aforementioned events were not part of the record of trial. However, the addendum was never served on appellant or his defense counsel. Government appellate counsel also submitted a post-trial affidavit averring that the victim’s family did not recommend clemency for appellant. The affidavit details that the victim’s widower was opposed to clemency, as was the victim’s mother. The affidavit notes that the victim’s mother had “changed the position she had taken at the court-martial” and was now “adamantly” opposed to clemency for appellant.

Keep in mind that most SJA’s have a sit-down with the CA and discuss the case. So it’s quite likely the CA became aware of the victims change of heart about clemency. The appellate trend seems to dictate that any time the SJA is going to submit something to the CA after receiving the defense matters, it’s best to go ahead and serve the defense out of an excess of caution.

United States v. Kloch. This case addresses limitations a military judge may place on an accused’s unsworn statement on sentencing during his court-martial. The issue was discussion of results in co-accused’s cases. ACCA found the military judge erred in preventing such statements, but the error was not prejudicial. The case gives a decent review of the wide “discretion” allowed an accused to say what he or she wants during their unsworn statement, including otherwise inadmissible information.