Article 46(a) provides that:

(a) Opportunity to Obtain Witnesses and Other Evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

Emphasis added. The production of evidence requested by the members of a court-martial is at issue in a new CAAF grant:

No. 15-0372/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:


Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The opinion notes:

Lastly, we consider the appellant’s argument that the military judge erred when he admitted muster reports the members requested during their deliberations over defense objection. He first contends that the muster reports do not satisfy the requirements of a record of regularly conducted activity under MILITARY RULES OF EVIDENCE 803(6), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). He next argues that the muster reports are testimonial and that admitting those records during deliberations without the ability to confront the records custodian or present further argument in front of the members violates his constitutional right of confrontation. We disagree with both contentions.

Slip op. at 10-11.

6 Responses to “CAAF to review evidence requested by court-martial members”

  1. Phil Cave says:

    The ask from the members is not an uncommon issue, so it is good to get some more CAAF learning on it.  I would add that the MJ has some control over the admission of evidence requested by the members (MRE 611), as do the rules of evidence. Part of the MJ’s consideration should include whether or not the members are violating their oath that they are not to help either side perfect their case (something which I don’t think is present here).
    I’m seeing CAAF say this was OK, assuming all the facts are in the opinion.  What I’m looking to read is the answer to the Judge Erdmann question, ‘what is the rule you want us to provide?”  Is this a fact-specific case, or one amenable to broader guidelines.  See, e.g., the Reynolds test, the Houser test, the  . . . test.
    On a different note–the expert issue.  I’ve been following an aspect of defense experts and their testimony for some time.  My question–is there is some general discrimination regarding experts when offered by the defense compared to the prosecution.  See, e.g., D. Michael Rissinger, Navigating Expert Reliability: are Criminal Standards of Certainty Being Left on the Dock?  64 ALBANY L. REV. 99 (2006).
    The question is something to ponder.

  2. Cheap Seats says:

    Is anyone else troubled by the argument of Defense Counsel when he argues the TC must not have had the reports because they were not marked as an exhibit?  I’d love to know the actual quote from DC.  Arguing the government has not introduced any reports in evidence is one thing, arguing they must not have them is another.

  3. Tami (a/k/a Princess Leia) says:

    If the DC’s argument really was “the TC must not have the muster reports,” then I think this is an issue of invited error.
    Under RCM 921(b), the panel members can request the court-martial be reopened and request additional evidence after beginning deliberations.  The military judge has discretion to permit the receipt of additional evidence.
    Either way, I don’t see the defense winning this one.

  4. Phil Cave says:

    What Tami said.
    If the TC had wanted to, the MJ could have been within limits, under current case law, in allowing the prosecution to reopen its case to rebut the argument.  Pity they didn’t think to offer the information during the merits of their case or during the cross-examination of the accused.  Would have resolved this issue easily.  The TC motto’s should include ‘moot issues protect the record protect the conviction.’  Had the MJ allowed a reopen, I’m not at all sure that would be an abuse of discretion under the circumstances we read in the NMCCA opinion. 
    Don’t see CAAF finding for Appellant, more likely an opportunity to write on the general issue.  NMCCA decided a similar issue in 1993, United States v. Campbell, 37 M.J. 1049 (N.M.C.M.R. 1993).

    The members are “at liberty to request that witnesses be called or recalled or to have testimony reread by the court reporter . . .”  Id. at 26. “Moreover, our precedents make clear that, even after the courtmembers have begun their deliberations, they may seek additionalevidence.” Id. at 25 (citations omitted). The ability of the members to request evidence is a statutory one. Article 46, UCMJ. Article 46, UCMJ, states in pertinent part that “[t]he trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” (emphasis added); see United States v. Martinsmith, 41 M.J. 343, 347 (C.A.A.F. 1995).  Rule for Courts-Martial [hereinafter R.C.M.] 921(b) also permits the members to “request that the court-martial be reopened and that portions of the record be read to them or additionalevidence introduced. The military judge may, in the exercise of discretion, grant such request.” See United States v. Rios, 64 M.J. 566, 568 (Army Ct. Crim. App. 2007) (holding that the military judge abused his discretion by summarily denying the members’ requestto rehear the testimony of two witnesses). Rule for Courts-Martial 801(c) contains a similar provision, stating that “[t]he court-martial may act to obtain evidence in addition to that presented by the parties. The right of the members to have additional evidenceobtained is subject to an interlocutory ruling by the military judge.”  Finally, the Military Rules of Evidence [hereinafter Mil. R. Evid.] also contain a provision reiterating the members’ ability to call and interrogate witnesses. See Mil. R. Evid. 614(a).
    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.

    United States v. Story, 2009 CCA LEXIS 449, *4-5, 2009 WL 6835719 (A.C.C.A. Dec. 2, 2009).

  5. Saul says:

    The appellant’s first contention of muster reports not satisfying the requirements 803(6), seems a non-starter. 
    I think the Judge should have allowed the defense to argue the accuracy, but that’s probably not a winning argument either.
    It always makes me feel good when my opinion jives with Mr. Cave’s, especially when that opinion favors the government.  :)

  6. k fischer says:

    We had this issue pop up in a court martial last week at Benning.  I told the panel in opening statements that my client made surreptitious recordings of arguments he had with his spouse.  The Government was trying to keep them out.  After the accused testified, the panel president asked to hear them, so the judge obliged his request under the RCM and permitted us to play the relevant portions of them.  It allowed the defense to show what his wife the way she really was, which was not much of the victim she portrayed herself to be.