In an unpublished, per curiam opinion in United States v. Castillejo, No. 20130507 (A. Ct. Crim. App. Jun. 20, 2016) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because:
During appellant’s trial the government played certain portions of the appellant’s interview with a U.S. Army Criminal Investigation Command (CID) Special Agent (SA). These excerpts were played for the panel without ever being admitted into evidence.
Slip op. at 2.
The defense did not object, but the CCA finds plain and obvious error, and prejudice:
Clearly the members were expected to consider the recording of the accused’s statement as evidence, and the only reason the members did not have access to the video during deliberations was due to technical insufficiencies in the government’s software. The substance of the video was likely highly prejudicial to the outcome of the trial. While it is not clear precisely what portions of the DVD were played before the panel, it is evident from the record that significant portions of the appellant’s interview with CID were played. This video was also referenced throughout the entire trial, and trial counsel referred to it as evidence for the panel to consider in its deliberations. Furthermore, despite acknowledging that the video statement was published to the panel but never admitted into evidence, the military judge gave no curative instruction to the panel. Accordingly, we cannot be reasonably confident that the accused was convicted on the basis of the evidence alone.
Slip op. at 4.
The CCA authorizes a rehearing.