Court-Martial Trial Practice Blog
What is the bottom line for a military defense counsel or accused who want to sever court-martial charges? Southworth is the leading military case on the subject.
Factual Synopsis
Appellant faced a single, joint general court‑martial for two sexual‑assault episodes committed on successive evenings, 5–6 August 1995. The first involved AL, an adult Navy sailor, in a barracks “group‑sex” setting; the second involved LP, a 13‑year‑old civilian dependent, in a storage shed at a base festival. Before trial the defense sought severance under Rule for Courts‑Martial (RCM) 906(b)(10), contending that joinder posed an undue “spillover” risk because evidence from one incident would be inadmissible at a separate trial on the other. The military judge denied severance but offered special findings and ultimately instructed members that each specification must “stand on its own.” The panel acquitted appellant of raping AL (convicting only of indecent assault, later set aside for factual insufficiency) and convicted him of raping LP. On appeal, appellant claimed that the AL evidence impermissibly bolstered the LP case and that the limiting instruction was inadequate.
II. Governing Law and Appellate Standard
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Joinder preference. RCM 601(e)(2) authorizes referral of “two or more offenses” to a single court‑martial; Discussion to RCM 602 states that ordinarily all known charges should be tried together. JSC
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Severance remedy. RCM 906(b)(10)(A) permits severance “only to prevent manifest injustice,” a more restrictive standard than Federal Rule 14. Denial is reviewed for abuse of discretion. United States v. Foster, 40 M.J. 140, 148 (C.M.A. 1994).
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Three‑factor test. United States v. Curtis identifies:
(a) cross‑admissibility of the evidence;
(b) adequacy of limiting instructions; and
(c) whether the findings reveal impermissible crossover. 44 M.J. 106, 128 (C.A.A.F. 1996). Subsequent cases apply the same framework.
III. Application of the Curtis Factors
| Factor | Analysis | Result |
|---|---|---|
| 1. Cross‑admissibility | Similarities (intoxication; consent defense) existed, yet material differences (adult group activity vs. child solitary rape; spontaneous entry vs. initiation; threats with a knife only in LP event) mean the AL evidence would likely have been excluded under Mil. R. Evid. 404(b) in a separate LP trial. | Weighs for severance, but is not dispositive. |
| 2. Limiting measures | The judge adopted the defense‑proposed spillover instruction verbatim and invited special findings. Unlike United States v. Haye—where the government’s proof merged the offenses—the prosecution here rigidly compartmentalized witnesses, exhibits, and argument for each victim. | Strongly against severance; instruction and trial management mitigated prejudice. Justia Law |
| 3. Findings | Members distinguished charges precisely: acquittal on AL rape, partial conviction on lesser‑included indecent acts, and conviction on LP rape. That split verdict shows they evaluated the incidents independently. Failure of the defense to request special findings further undercuts the claim of confusion. | Against severance; no demonstrable spillover. |
Balancing the factors, the military judge’s ruling sits within the “range of choices” available to a reasonable judicial officer and therefore is not an abuse of discretion. United States v. Curry, 31 M.J. 359, 374 (C.M.A. 1990). Justia Law
IV. Strategic Take‑Aways for Practitioners
Defense counsel
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Record‑preservation: When severance is denied, demand special findings to create a clear appellate record of panel reasoning. Refusal here limited appellate leverage.
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Targeted voir dire and expert testimony: Emphasize the stark victim‑age disparity to accentuate unfair prejudice under Mil. R. Evid. 403 and strengthen the “manifest injustice” argument.
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Alternative relief: Seek sequential presentation (try one set of charges to the same panel, recess, then the other) as a middle‑ground remedy accepted in some jurisdictions.
Government counsel
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Compartmentalization works. Chronological case‑in‑chief sequencing and separate thematic arguments persuaded both the panel and appellate court that evidence remained siloed, reinforcing the joinder policy.
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Limiting instructions are necessary but not sufficient. They gain force only when the presentation itself respects offense boundaries; Haye remains a cautionary tale.
V. Scholarly Perspective
Commentators note that RCM 906(b)(10) “reflects an institutional belief that military fact‑finders, selected for maturity and training, can compartmentalize evidence better than civilian jurors,” making severance truly exceptional (Schlueter, Military Criminal Justice: Practice & Procedure §14‑7 (11th ed. 2024)). Recent academic surveys echo the Curtis triad as the de‑facto analytic lens.
VI. Conclusion
Because (1) cross‑admissibility was doubtful but not overwhelmingly prejudicial, (2) the judge provided tailored instructions and the prosecution rigorously isolated each incident, and (3) the members’ nuanced verdicts show independent evaluation, the denial of severance did not create “manifest injustice.” Accordingly, affirmance by the Navy‑Marine Corps Court of Criminal Appeals is legally and factually sound.