Argument Preview: Considering whether R.C.M. 914 applies to questions by law enforcement during an interrogation, in United States v. Clark
CAAF will hear oral argument in the Army case of United States v. Clark, No. 19-0411/AR (CAAFlog case page), on Tuesday, February 11, 2020, at 9:30 a.m. The court granted review of three issues involving R.C.M. 914 (the military version of the Jencks Act, 18 U.S.C. § 3500) and pretrial statements made by military law enforcement agents:
I. Did the military judge err in applying R.C.M. 914?
II. If the military judge erred, under what standard should this Court assess prejudice?
III. Was there prejudice under the applicable standard of review?
Sergeant (E-5) Clark was convicted by a general court-martial composed of members with enlisted representation of making a false official statement, rape of a child, and sexual assault of a child, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge.
Suspecting Clark of sexually molesting his daughter, military investigators interrogated him over the course of two days. Clark waived his rights, made damaging admissions, and ultimately gave a confession. Both days of interrogation were video recorded, however the agents failed to preserve the recording of part of the second interrogation (during which Clark made his fullest confession). The defense moved to abate the proceedings under R.C.M. 703(f)(2), Manual for Courts-Martial (2016 ed.) (moved to 703(e)(2) in the 2019 ed.), on the basis that the lost video was essential evidence of the circumstances under which the confession was obtained (and potentially manipulated by the investigators). But the military judge denied the motion, concluding that testimony about the interrogation was an adequate substitute for the recording.
Then, during trial, when the agents testified about the interrogations, the prosecution introduced evidence about the agents’ own statements during the period of the interrogations where the video was lost. That allowed the defense to make a R.C.M. 914 objection to the testimony of the agents, setting the stage for the issues now pending CAAF’s review.
R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), which requires production of the prior statements of a witness that are related to the subject matter of the witness’ testimony. CAAF last considered the rule in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), and it unanimously affirmed a trial-stage ruling that struck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. The military judge in Clark, however, held that R.C.M. 914 does not apply to the agents’ questions to Clark during the interrogation.
Clark raised the military judge’s ruling as error on appeal. A three-judge panel of the Army CCA suggested that the military judge was wrong and that R.C.M. 914 does apply to the agents’ questions. Nevertheless, the CCA concluded that any error was harmless because of the strength of the other evidence, including the portions of the interrogations where the video was preserved. In so ruling, the CCA distinguished CAAF’s opinion in Muwwakkil (where the court held that R.C.M. 914 does not require a prejudice analysis to warrant relief) on the basis that Muwwakkil involved an interlocutory review while Clark involves an ordinary (post-conviction) appeal for which Article 59 requires a showing of prejudice.
The three granted issues question the CCA’s decision broadly, asking whether there was error, how to review any error, and if the error was prejudicial. Clark’s brief concedes that CAAF’s review is narrow and that the court should test for prejudice, but argues that his conviction should nevertheless be reversed.