CAAFlog » October 2018 Term » United States v. Criswell

CAAF decided the Army case of United States v. Criswell, 78 M.J. 136, No. 18-0091/AR (CAAFlog case page) (link to slip op.), on November 16, 2018. The court granted review to determine whether the military judge erred by allowing the alleged victim to identify Criswell as her assailant during her testimony, even though she did not know him before the alleged assault and she was shown a picture of him (and only him) before trial in a way that was found to be unnecessarily suggestive. CAAF narrowly affirms the military judge ruling and Criswell’s convictions, with the majority applying a highly-deferential standard of review that focuses on Criswell’s appellate-stage objections to the military judge’s ruling. The dissenters, however, conduct a broader review, find numerous flaws in the military judge’s ruling, and would reverse the findings and authorize a rehearing.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson dissents, joined by Judge Sparks.

CAAF granted review of a single issue:

Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

A general court-martial composed of a military judge alone convicted Specialist (E-4) Criswell, contrary to his pleas of not guilty, of one specification of making a false official statement, two specifications of abusive sexual contact, one specification of assault consummated by battery, and one specification of indecent language in violation of Articles 107, 120, 128, and 134. Criswell was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge.

Criswell’s convictions relate to an allegation by Specialist (SPC) AM that she was verbally harassed and sexually touched on two separate occasions during a large party at a convention center. SPC AM is a white female; her assailant was a black man. The lighting was poor during both encounters and SPC AM did not know her assailant, but she saw his face well enough to provide a general description to another soldier at the party and based on that description the other soldier suspected Criswell. Military criminal investigators showed SPC AM a single picture of Criswell the next day, and she identified him at that time as her assailant “immediately and without hesitation.” Slip op. at 7 (quoting military judge’s findings of fact). Testifying in court, SPC AM again identified Criswell as her assailant. The military judge did not allow the prosecution to introduce SPC AM’s out-of-court identification of Criswell, but he allowed the in-court identification over a defense objection that challenged it as the unreliable product of the actions of the military investigators.

Considering those facts, all of CAAF’s judge’s agree that eyewitness identifications can lead to injustice. Judge Maggs observes for the majority that “eyewitness identifications are problematic in any criminal justice system.” Slip op. at 2. Judge Ohlson observes for the dissenters that “mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined.” Diss. op. at 11 (quoting United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006)). But CAAF splits over how to review the eyewitness identification allowed in this case. While the ordinary standard of review for rulings admitting evidence is abuse of discretion – where findings of fact are reviewed for clear error and conclusions of law are reviewed de novo – the majority narrows that approach, with Judge Maggs explaining:

Applying this standard in this case, we do not undertake a de novo analysis of whether the in-court identification should have been admitted. Instead, we focus on Appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts.

Slip op. at 7 (emphasis added). The majority then addresses the challenges raised in Criswell’s “brief and reply brief,” slip op.at 8, and during oral argument, slip op. at 8-9 (citing oral argument recording). See also slip op. at 11 (excusing the military judge’s failure to specifically address a factor because “Appellant does not contend, either in his briefs or his oral argument[,] that the military judge misunderstood this aspect [of the law]”). The dissenters, however, make no reference to Criswell’s briefs or to the oral argument while concluding that “the military judge committed three errors in this case.” Diss. op. at 4.

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Audio of last week’s project outreach oral arguments is available at the following links:

United States v. Eugene, No. 18-0209/AR (CAAFlog case page): Oral argument audio

United States v. Criswell, No. 18-0091/AR (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Army case of United States v. Criswell, No. 18-0091/AR (CAAFlog case page), on Thursday, September 13, 2018, at 11 a.m., at the Fordham University School of Law in New York. A single granted issue challenges the military judge’s ruling that allowed the alleged victim to make an in-court identification of the appellant as her assailant:

Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

A general court-martial composed of a military judge alone convicted Specialist (E-4) Criswell, contrary to his pleas of not guilty, of one specification of making a false official statement, two specifications of abusive sexual contact, one specification of assault consummated by battery, and one specification of indecent language in violation of Articles 107, 120, 128, and 134, UCMJ. Criswell was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge.

Criswell’s convictions relate to an allegation by Specialist (SPC) AM that she was sexually touched and harassed by a man during a party at a convention center at Austin Peay State University in Clarksville, TN. SPC AM is a white female; her assailant was a black man. SPC AM did not know her assailant, but she described him to another soldier shortly after the alleged touching, and the other soldier said, “I probably know who this is.” App. Br. at 5 (quoting record). That led to the identification of Criswell as possibly being the assailant.

The following day SPC AM reported her allegation to military authorities, who showed her a picture of Criswell. SPC AM then said that Criswell was her assailant. But that out-of-court identification was not admited into evidence. Instead, SPC AM identified Criswell as her assailant during trial:

The trial counsel asked SPC AM whether she recognized her assailant in the ccourtroom. (JA 75). Specialist AM pointed to SPC Criswell and said, “I recognize his facial features. I recognize, like, the—it’s weird—like, the shape of his head. I recognize the size of his body. I am able to recognize, compared to when he was close to me.” (JA 76).

App. Br. at 12.

Criswell moved to suppress the identification at trial and again challenged it on appeal before the Army CCA. The military judge allowed the in-court identification and the Army court affirmed that decision. CAAF will now determine if those decisions were right.

Case Links:
• ACCA decision
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Law student amicus in support of appellant
• Law student amicus in support of the appellee (Gov’t Div.)
• Blog post: Argument preview

Yesterday CAAF granted review in an Army case:

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

Briefs will be filed under Rule 25

The Army CCA’s opinion is available here.