CAAF decided United States v. Brown, No. 13-0244/NA, 72 M.J. 359 (CAAFlog case page) (link to slip op.), on July 15, 2013, finding that the military judge did not abuse his discretion under Military Rule of Evidence 611(a) when he allowed the victim advocate to sit next to the 17 year-old victim during her testimony against Appellant, affirming the NMCCA.

Chief Judge Baker writes for a unanimous court.

Appellant, Master-At-Arms First Class (E-6) Donald Brown, was convicted in 2011, contrary to his pleas, by a general court-martial composed of members with enlisted representation, of rape of a child, aggravated sexual assault of a child, two specifications of child endangerment, and three specifications of indecent liberties with a child, in violation of Articles 120 and 134, UCMJ. The members sentenced him to confinement for forty-five years, reduction to E-1, and a dishonorable discharge, and that sentence was approved.

In 2009 Appellant was accused of having provided alcohol and pornography to his two step-daughters. He was also alleged to have sexually assaulted one of the girls, [AW], from 2004 to 2008. In 2011, AW, then almost 18 years old, testified for the Government at Appellant’s court-martial. However, she began crying uncontrollably at the beginning of the prosecution’s direct examination. The members were excused and the military judge asked the prosecution how it would proceed. Trial counsel asked the judge to allow AW’s “victim advocate” to sit next to her in the courtroom during her testimony. Over objection from the defense, the military judge permitted the victim advocate to sit next to the witness throughout her testimony. The military judge also provided an instruction to the members about the presence of the advocate. AW then testified about the Appellant’s numerous sexual assaults of her, and Appellant was convicted.

On appeal, Appellant asserted that the military judge’s decision to allow the victim advocate to sit next to AW while she testified was improper, and that it violated his constitutional right to due process by eroding the presumption that he was innocent. In response, the Government asserted that the military judge merely exercised reasonable control over the proceedings, as was his duty under Rule for Courts-Martial (R.C.M.) 801 (“Military judge’s responsibilities…”) and M.R.E. 611 (“Mode and order of interrogation and presentation”). For a detailed analysis of these positions, see my argument preview in this case. The Navy-Marine Corps CCA rejected Appellant’s challenge.

Chief Judge Baker begins his discussion with the following language that is fantastically bad for Appellant’s case:

We review a military judge’s control of the mode of witness interrogation pursuant to M.R.E. 611 for abuse of discretion. Similarly, we review a military judge’s exercise of “reasonable control over the proceedings” pursuant to R.C.M. 801 for abuse of discretion.

Slip op. at 7 (citations omitted). Appellant asked CAAF to apply “close judicial scrutiny,” and argued that the presence of the victim advocate was “inherently prejudicial.” CAAF’s unanimous decision to test this case for an abuse of discretion (the standard most deferential to the trial judge’s decision), and to avoid any discussion of constitutional due process, is an outright and complete rejection of Appellant’s main argument. Though, the Chief Judge is kind enough to not say so explicitly.

But the opinion is short, with Chief Judge Baker dedicating just two pages to the analysis of why the military judge did not abuse his discretion by “allowing a support person to accompany AW on the stand.” Slip op. at 9. See also slip op. at 5-6 N.4 (“Courts generally refer to an adult who accompanies a witness to the stand to facilitate the witness’s testimony as an ‘attendant’ or ‘support person.’ . . . this case and this opinion only address the use of a trained victim advocate as a support person.”). This analysis is nicely summarized in the penultimate paragraph of the opinion:

In this case, the witness was physically overtaken by sobbing and could not provide information to the court. Where, as here, the military judge took reasonable steps to test the witness’s capacity to continue as well as steps to mitigate the risks of prejudice to the accused, it was within the military judge’s discretion to conclude that further attempts to proceed with a witness in such a state would “needless[ly] consum[e] . . . time,” M.R.E. 611 (a)(2), and do not aid in “ascertainment of the truth,” M.R.E. 611 (a)(1).

Slip op. at 10. And so CAAF finds no error and affirms.

There are few practice points to be drawn from this short opinion, but two are clear. First, military judges wield a lot of power over the mode and method of presentation of the evidence. And second, a successful challenge to a particular exercise of this power requires a well-developed record; if the judge permits a party to use an undesirable method to present evidence, opposing counsel must fight hard to get the judge to make detailed findings if they hope to successfully challenge the method on appeal.

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

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