Does the defense in a court-martial under the Uniform Code of Military Justice (UCMJ) have to give discovery about your defense to the prosecution? Yes, sometimes.
There are several rules set out in the Manual for Courts-Martial that your military lawyer or civilian defense counsel knows about. The rules are contained in Rule 701.
Special defenses.
Last year the Committee on Rules of Practice and Procedure Judicial Conference of the United States requested public comment on proposed changes to several rules of evidence. On page 299 of the request, you will find the proposed evidence rules. We are most interested in Rule 702, which deals with experts and expert testimony.
The Daubert case was an effort to make the trial judge the gatekeeper of expert testimony to make sure it was reliable and relevant. However, the military appellate courts adopted Daubert and added their factors to consider over time. From this, we, or your military defense lawyer, will make Houser motions from time to time. United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a judge should use to determine the admissibility of expert testimony.
In United States v. Ferreira. ARMY MISC 20220034 (A. Ct. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the military judge’s decision in United States v. Dial,” that he will instruct the jury that they must have a unanimous vote for guilty to any of the charges.
The government has petitioned for a Writ of Prohibition as they have done in Dial. Here is a link to the government’s petition filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022).
In 1775, the Second Continental Congress adopted the British Articles of War for the Continental army. The Articles did not require unanimous verdicts in courts-martial findings. That a military jury can find a service member guilty with less than unanimous votes remains the law. That law now conflicts with the law in all U.S. jurisdictions since the Supreme Court decided the case of Ramos v. Louisiana in 2020.
Over the last several years, I have noticed quite a few cases on appeal challenging improper arguments made by the prosecutor. Here is a short burst on a recent approach I have taken.
Standard of review
Prosecutorial error in making an improper argument is a legal question reviewed de novo. If there is no object to the errors, this Court applies a ‘plain error” standard of review. An appellant must show “(1) there is an error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017); United States v. Erikson, 65 M.J. 221 (CA.A.F. 2007); United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).
Civilian counsel don’t always get paid by the client. Rather, it oftentimes can be the parents or a family member. Technology and other innovations have brought us crowdfunding and organizations set up to help defray legal fees for a court-martial accused.
I recently participated in a Zoom discussion about this topic and its ethical concerns.
Here is a link.
For your reading. R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.
Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,
“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”
Court-Martial Trial Practice Blog