Court-Martial Trial Practice Blog
Several cases have been decided by CAAF.
United States v. Baker. Erdmann wrote for himself and Effron and Stucky, with Baker writing in dissent for himself and Ryan.
This was action on a government appeal under Article 62, UCMJ. The ACCA reversed an identification suppression made by the military judge.
Military Rules of Evidence (M.R.E.) 321(a)(1) and (d)(2), read together with (a)(2)(B), set forth a two-prong test based upon Supreme Court case law for determining admissibility of eyewitness identification. United States v. Rhodes, 42 M.J. 287, 290 (C.A.A.F. 1995). “First, was a pretrial identification unnecessarily suggestive? Second, if the pretrial identification was ‘unnecessarily suggestive,’ was it conducive to a substantial likelihood of misidentification?” Id.
CAAF determined that the military judge did not abuse his discretion in suppressing the identification and reinstated the MJ’s ruling. CAAF emphasized the limited standard of review on a government appeal. In particular it appears CAAF saw that ACCA had made its own findings of fact, which it is not permitted to do. Reviewing courts may only use facts found by the military judge. This is why it is important for trial practitioners to ensure the fullest factual record possible.
I will soon be posting a comment about Perry v. New Hampshire, an eyewitness identification case scheduled for oral argument in November at the U. S. Supreme Court.
United States v. Lusk. This was a per curiam decision remanding the case back to AFCCA for analysis in light of Blazier and other factors. Here the prosecution sought to introduce testimony to rebut defense cross examination. I think the trial practitioner issues relate to what you do on cross-examination, what the prosecution can do in rebuttal, and how all the parties have to be careful about limited purposes and restrictions put on evidence.