CAAF decided the Navy case of United States v. Bess, 75 M.J. 70, No. 15-0372/NA (CAAFlog case page) (link to slip op.), on Wednesday, January 6, 2016. The court finds that the military judge abused his discretion when he provided additional evidence to the members during deliberations without allowing the appellant an opportunity to challenge the reliability of that evidence. The court reverses the appellant’s convictions of attempting to commit indecent acts and committing indecent acts, and the decision of the Navy-Marine Corps CCA, and authorizes a rehearing.

Judge Stucky writes for a unanimous court.

CAAF specified the following issue for review in this case:

Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

The appellant was tried by a general court-martial composed of members with enlisted representation. He was convicted contrary to his pleas of not guilty of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80 and 120. The members sentenced the appellant to confinement for two years and a dishonorable discharge.

The appellant was a Navy x-ray technician and the alleged indecent acts involved instructing female patients to be completely naked for x-ray examinations. The appellant was tried on various charges (including allegations of physical contact) involving seven alleged victims, and he was convicted of one offense for six of those seven. However, the appellant’s identity as the x-ray technician for the alleged victims was a hotly contested issue in the trial.

After the close of evidence and during deliberations the members asked the military judge for additional evidence including muster reports (attendance records) that could be used to determine whether the appellant was the x-ray technician on duty at the time of each alleged indecent act. Article 46(a) of the UCMJ provides explicit statutory authorization for the court-martial to obtain evidence on its own initiative. Considering the members’ request, the military judge conducted a hearing outside the presence of the members, heard testimony about the muster reports, and concluded that they were admissible as business records. However, the military judge denied a defense request to examine the witnesses before the members or to give additional closing argument, and instead “handed the reports to the panel with no explanation, stating only that they had ‘been admitted into evidence.'” Slip op. at 3. Soon afterward the members returned with their findings.

Judge Stucky finds no fault with the judge’s ruling admitting the muster reports. However, he concludes that “giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process.” Slip op. at 7.

The court’s opinion first considers whether the muster reports were admissible under the business records exception to the hearsay rule, M.R.E. 803(6) (Records of a Regularly Conducted Activity). The appellant asserted that the records failed the trustworthiness prong of that exception. CAAF rejects that assertion, with Judge Stucky explaining that:

[C]ontemporaneous documentation need not be a model of statistical clarity to qualify as a business record.

Slip op. at 5.

But Judge Stucky’s opinion makes a clear distinction between the admissibility of the reports and the right of the appellant to challenge their reliability in front of the members:

The question of admissibility is distinct, however, from the question of whether Appellant should have been allowed to attack the reliability of the evidence before the factfinder.

Slip op. at 5. Recognizing that the right to present relevant evidence is not unlimited and that military judge’s have significant discretion to control the proceedings, Judge Stucky explains that the total deprivation of the opportunity to challenge, rebut, or comment upon the evidence in this case was too much:

While the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process. In the full context of this trial, we conclude that Appellant’s consti-tutional rights were violated. . . .

The relevant witnesses were available, Appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the Government’s altered case. Failure to give Appellant these opportunities violated his constitutional rights.

Slip op. at 7.

Having found error, Judge Stucky turns to the question of prejudice. Because the error in this case involves constitutional rights the Government had the burden to prove it harmless beyond a reasonable doubt. That means that CAAF must “conclude beyond a reasonable doubt that the members would have reached the same six guilty verdicts had Appellant been allowed to question the implications of the muster reports.” Slip op. at 8.

Judge Stucky identifies numerous factors that support harmlessness, some of them rather compelling:

Appellant concedes that with respect to victims A.A. and J.E. the identity of the alleged perpetrator was not at issue. Of the remaining four victims whose allegations resulted in a conviction, three of the victims identified Appellant as their X-ray technician in court, two remembered his rank and his request for them to sign a nudity consent form, and all four had X-rays taken that bore Appellant’s identifying symbol. Two recalled that the perpetrator had no discernible accent.

Slip op. at 9. Nevertheless, the court is still not convinced that the deprivation of the right to challenge the muster reports was harmless:

But this evidence is not enough to demonstrate harmlessness beyond a reasonable doubt, because challenging the evidentiary weight of the muster reports could have shaken the Government’s case.

The muster reports were not airtight evidence of Appellant’s identity as the perpetrator. Had he been afforded his right to put on a complete defense, as we know from the testimony that the military judge heard . . . Appellant’s counsel would have been able to argue to the factfinder that the muster reports should not carry much weight.

Slip op. at 9. Judge Stucky also notes the timeline of events in the case as evidence that the muster reports were particularly important to the members’ deliberations:

In closing argument, the defense counsel had emphasized the Government’s failure to introduce the muster reports as a significant weakness in its case. The members began deliberations at 7:55 a.m., and requested the muster reports and a number of other documents approximately an hour later. They were told at 9:35 a.m. that the parties were “working on” the muster reports, but that the other documents they requested were “not admissible under the rules.” Three hours and forty-one minutes later, at 1:16 p.m., the muster reports were handed to the panel without comment, and over objection. They announced their findings at 1:49 p.m., only a half hour after receiving them and nearly six hours after deliberations began.

Clearly, the members were affected by defense counsel’s argument, since they then requested the muster reports to see what was in them. . . . Given the interest which the reports clearly provoked among the members, and the timing of the verdict, we simply cannot say that that the error did not contribute to the verdict beyond a reasonable doubt.

Slip op. at 10.

Interestingly, CAAF does not go much beyond finding prejudicial error in this case, and the court makes no broad pronouncement about the procedural protections necessary when court-martial members interrupt their deliberations to obtain additional evidence. However, at the end of the opinion Judge Stucky hints at the analysis that CAAF will expect to see in future cases:

While R.C.M. 921(b) permits a military judge to grant the members’ request to introduce new evidence after they have begun deliberations, this case demonstrates that the military judge should review and weigh such requests with great caution. Procedures should be employed to ensure that no unfair prejudice is afforded to either party. See M.R.E. 403.

Slip op. at 11.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: Denying an accused the right to challenge evidence requested by members offends constitutional rights in United States v. Bess, No. 15-0372/NA”

  1. Alfonso Decimo says:

    The judge no doubt wishes he spent some time drafting findings on this ruling, because the CAAF seems to indicate they would have shown more deference if the right judicial analysis was in the record.