In The Hazard of Humphries, I discussed how CAAF’s decision in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), fails to follow the court’s own precedent, and that of The Supreme Court, in applying the test for plain error, and that a consequence of this failure is to encourage trial-level sandbagging of a defective specification.
A recent NMCCA case is worth considering on this point. The entire analysis of the defective specification issue takes just two paragraphs:
Whether a specification states an offense is reviewed de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). A specification states an offense when it alleges every element of the offense either expressly or by necessary implication. United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012). If a specification fails to allege all the elements of an offense expressly or by necessary implication, we then test for prejudice. United States v. Nealy, 71 M.J. 73, 77 (C.A.A.F. 2012). “In the plain error context the defective specification alone is insufficient to constitute substantial prejudice to [an appellant’s] material right.” United States v. Humphries, 71 M.J. 209, No. 10-5004, 2012 CAAF LEXIS 691, at *19 (C.A.A.F. Jun. 15, 2012) (citations omitted). Where the prejudice to a material right is rooted in notice, the record is examined to see if the missing terminal element is somewhere extant in the trial record, or whether the element is essentially uncontroverted. Id.
The specification for obstructing justice fails to allege that the act was prejudicial to good order and discipline or service discrediting. The appellant claims that he was denied sufficient notice of the terminal element. The record supports his claim. The pretrial proceedings did not make any mention of the terminal element. The Government made no reference to the terminal element during opening statement and did not introduce any direct evidence that might satisfy the element. The military judge did instruct the panel on the terminal element and the trial counsel alluded to it during closing argument, but these references came after the close of evidence. In line with our superior court’s reasoning in Humphries, we must conclude that appellant suffered prejudice and will take appropriate action in our decretal paragraph.”
United States v. Perry, No. 201100273, slip. op at 12-13 (N-M.Ct.Crim.App. July 31, 2012) (unpublished) (emphasis added). “Must conclude” is awfully strong language, when “to be clear, it is Appell[ant]’s burden to prove material prejudice to a substantial right.” Humphries, slip op. at 21, N.10 (emphasis added).
In fact, “must conclude” sounds a lot like “inherently prejudicial,” which would mean that the CCA sees this as a structural error…