One of the most basic skills for a trial lawyer is giving verbal descriptions of in-court actions as they occur, and having a witness mark exhibits when pointing at them, because the microphones that are recording the proceedings for the record can’t see what’s happening in the room.

But over the past few months we’ve seen a rash of appellate opinions that address trial-stage failures at the most basic level. Adding to the list is a recent opinion of the Army CCA in United States v. Wada, No 20120457 (A.Ct.Crim.App. Feb. 28, 2014) (link to slip op.).

Private Wada was tried by a general court-martial composed of members with enlisted representation. He pleaded guilty to numerous offenses, including willfully disobeying a superior commissioned officer, willfully disobeying a non-commissioned officer, resisting apprehension, assault consummated by a battery, and wrongfully communicating a threat. However, he pleaded not guilty to a charge of aggravated assault with a means likely to cause death or grievous bodily harm, and the Government elected to proceed to trial on that charge.

The charge alleged that the appellant dragged and struck the victim with an SUV.

The government case regarding this charge consisted of one witness, SGT JW, who testified using Prosecution Exhibit 1, an aerial photograph of the scene. During his testimony, SGT JW repeatedly referred to Prosecution Exhibit 1, but no markings were placed on the exhibit to memorialize his testimony nor does the exhibit contain a legend identifying the places described.

Slip op. at 2. The Defense called two witnesses who contradicted SGT JW’s testimony. One was a Specialist who was standing nearby and watched the incident. “From his vantage point, it did not look like the vehicle struck the [victim].” Slip op. at 3. The other witness was the victim. She testified that “she was not struck by the SUV; she was not injured in any way by the SUV; she was wearing slippers at the time; and her feet never dragged across the ground.” Slip op. at 3. But on cross-examination the Government impeached the victim’s credibility with the fact that she was the appellant’s dependent and he provided her with financial support. The panel convicted the appellant of the offense.

The CCA reverses for factual insufficiency:

We have weighed the evidence, making allowances for not personally observing the witnesses. Because Prosecution Exhibit 1 contains no legends or markings, we cannot identify most of the areas described by SGT JW or SPC KC, and that is important to our determination regarding whether we can find beyond a reasonable doubt that the SUV actually struck TW. Sergeant JW’s testimony, standing alone, contradicted by the testimony of TW and SPC KC in the absence of any evidence of injury to TW, is not sufficient to prove to us beyond a reasonable doubt that TW was struck by the SUV. Therefore, after a thorough review of the record, we find the evidence factually insufficient to support appellant’s conviction of aggravated assault.

Slip op. at 4 (emphasis added). Now this wasn’t the strongest case for the Prosecution. After all, its single eyewitness was contradicted by a Defense eyewitness and by the victim. But the CCA’s decision explicitly acknowledges the impossibility of recreating the critical testimony of SGT JW, because the exhibit that SGT JW used while he testified was not annotated.

Coincidentally, the events at issue occurred in December 2011. That’s the same month that I criticized the way the military conducts legal training in a post titled: Where are the teachers?

8 Responses to “Army CCA reverses aggravated assault conviction over an unannotated exhibit”

  1. DCGoneGalt says:

    There has been a lot of commentary on here recently lamenting the fact that trial judges seem to be correcting the errors of trial counsel with the insinuation they are somehow trying to acting as government proxies.  I happen to think it is more of an effort to avoid mistrials and unnecessary delay.  With the exception of the constant ruling of “there is no appearance of UCI” in Art 120 cases I have never take issue with military judges other than what would be expected in the usual ups and downs of a trial.  Wada is a case where I am shocked that the judge did not set out the proper way to mark an exhibit to the trial counsel in front of the members.  This would have solved the problem and avoided the appellate issue (maybe with somewhat of a delay while trial counsel found a clear sheet and some marker) while making a point to trial counsel that they never would have forgotten by calling them out in front of the members.  To me that would not have been assisting the government, instead it would have been basic protection of the record and I am shocked the judge didn’t fix this inexcusable lapse in trial preparation and lack of review by the chief of justice and/or SJA. 

  2. stewie says:

    As I look at your link, just brings me back to the idea of specialists/generalist, but that’s a battle one side is never going to win.

  3. RKincaid3 says:

    This is a huge issue And it will continue–consider the new requirement for ARt 32s have JAGs serve as the IO.  There are several going on right now where the IOs are contract and fiscal law attorneys, or environmental law attorneys.  One who is going to serve on something as important as a criminal trial pre-requisite should at a minimum be well-versed (vice simply being “familiar” with the concept) in criminal law.
    Like Stewie says, it is not going to be fixed any time soon.   And the fix won’t come from within the military.  It will have to driven from Congress, and we know what motivates them–everything but justice. 

  4. Christian Deichert says:

    At AFJAGS, we did a drill where students had a blowup of a barracks room (ok, it was the Air Force, they had to call it a “dorm room”), and we made them have the witness label different areas on the exhibit and then draw out the play-by-play of the scenario charged in the case.  (I don’t want to give it away if there are any USAF recruits lurking on this blog.)  It was always painful to go through it, both in the seminars before the mock trial and in the mock trial itself, but this is exactly why we made them go through it.  Guess I’m adding this to my TC training.

  5. Zachary D Spilman says:

    Indeed it can be painful Christian Deichert. But I’ve always believed that the better the instructor, the less the pain. 

    And maybe I’m weird, but I’ve never liked the drill you describe (guide a witness through illustrating the fact pattern). I think it forced, artificial, and a bad habit to train. In a real trial, the illustration inevitably becomes a confusing mess. It’s better to train the use of exhibits to effectively illustrate a comprehensive word picture presented by the testimony. And while some cases absolutely require the kind of illustration you discuss, I think those rare. The case discussed in this post, for example, seems like it easily could have been presented without significant reference to the aerial photograph, avoiding the appellate issue entirely.

    But I can offer a different anecdote. I didn’t have to read many records of trial before I realized just how stupid it is for counsel to say “let the record reflect,” as the record then includes the entirely superfluous words “let the record reflect.” I also didn’t have to read many appellate opinions before I realized that reviewing authorities make allowances for having not personally observed the witnesses. So when a witness does something significant but noiseless (squirming uncomfortably, sweating profusely, weeping silently, etc.), I make sure to say something to memorialize what happened.

    But now you’re thinking, “who reads records of trial and appellate opinions?” And that’s exactly the point.

  6. Grey says:

    I thought the words “let the record reflect” were directed more to the members than the record.  Shorthand for “please don’t think that I am crazy because I am describing out loud the things that all of you can all see for yourselves.”

  7. Zachary D Spilman says:

    The members know you’re not crazy because the judge explained what it was all about at the beginning of en banc voir dire (assuming your judges use the raise-your-hand technique).

    There are also ways to narrate your own actions that are perfectly natural and even familiar to the military community (where many occupations use verbal confirmations for a wide range of activities).

  8. Christian Deichert says:

    ZS – When I got there, it was a much more painful exercise in geometric narrative — “I was here on the bed [pointing].”  “Witness pointed to the large blue rectangle in the upper right hand corner.”  “Then I moved to the light switch [pointing].”  “Witness pointed to the black lego-shaped onject in the center of the diagram.”  
    I always taught them to use the overlay to their advantage and do a brief orientation, sort of a flyover, before they got into substance.  “Please label the bed and the lightswitch.”  [scribble scribble] “The witness complied.”  Now it’s a bed and a switch, and the witness can simply describe how they went from bed to switch.  (Better yet, you use a pre-labeled exhibit, but we were more sadistic, I guess.  Uh, I mean, we wanted them to go through the drill.)
    On record reflecting, I always made a point when I was sitting as a judge for these mock trials to interrupt and intone, with mock pomp and circumstance, “The record will so reflect.”  Then I’d point out during feedback that, sure, you might want to do that once or twice at first in front of a panel so they know you’re not just talking to the voices in your head, but after that it’s just surplus that the poor court reporter doesn’t need to deal with.  Always helps to look at the court reporter when you’re doing that, too; most panel members will figure out that it’s not for their benefit, just something we have to do.