Hannah A. Rice

Student Attorney at The Betty and Michael D. Wohl Veterans' Legal Clinic, Syracuse University College of Law.  Huuuum, apparently selected for the Air Force Graduate Program.

Today, it seems obvious that criminal defendants can waive constitutional rights. Plea bargains make up the vast majority of criminal convictions, and defendants routinely trade their rights — to indictment, to remain silent, to an attorney, to a jury — in exchange for a faster trial or a lesser charge. The modern criminal legal system is a regime of negotiated justice. Rights used to have more force. In the nineteenth century, the rules we now call criminal procedure rights were hard limits on judicial power. Defendants could not forfeit rights, and constitutional violations deprived courts of jurisdiction. But then, in an underappreciated and radical shift, courts changed their mind. One by one, rights became individual options, alienable upon consent. The rest is history: Grand juries declined, plea bargains soared, prosecutors became power brokers, and the system of mass processing was born. This Article recovers a lost chapter of American criminal procedure. It mines a trove of overlooked sources and traverses multiple disciplines to advance a simple claim: Between Reconstruction and the New Deal, courts transformed the rights of the accused. Long before the Warren Court revolutionized criminal procedure, there was a first revolution in constitutional criminal law. The story of that revolution reorients the field’s core assumptions, embarrasses modern doctrines, and expands the canon. It also advances our collective understanding of what it could mean to protect criminal procedure rights.

Cheers.

During presentencing, Ms. AA, through counsel, proffered an unsworn statement. Trial
defense counsel objected, first, to Ms. AA being considered a “crime victim” of the orders
violation and second, in the alternative, to specific portions of the unsworn statement. After  ​ruling that Ms. AA met the definition of a “crime victim” under R.C.M. 1001(c), the military
judge sustained some, but not all, of trial defense counsel’s objections to specific portions of the
unsworn statement. Appellant now asserts the military judge erred, both by allowing Ms. AA to
provide an unsworn statement at all and by allowing specific portions of the unsworn
statement—including some that trial defense counsel did not object to.

First, we again note the military judge’s excellent instructions, which made it clear to the members that they were only to sentence Appellant for the orders violation and were to disregard anything they heard that they concluded pertained to the offenses of which they had acquitted Appellant. Second, the trial counsel kept his sentencing argument tightly focused and did not mention Ms. AA’s transfer. Third, the members had already heard Ms. AA testify to her belief that she had been assaulted during the merits portion of the trial. 

[I agree to] waive all waivable motions except those that are non-waivable pursuant to R.C.M. 705(c)(1)(B). This waiver includes all of my previously filed motions in this General Court-Martial, and any motions for confinement credit for the time period when I was placed in [RILA] (sic)."

​Appellant argues, “Trial counsel’s questions about child support were improper [Military Rule of Evidence (Mil. R. Evid.)] 405(a) inquiries because Chief Tango never testified about Appellant’s pertinent character trait of being a good father. Regardless, the inquiry fails an [Mil. R. Evid.] 403 balancing test (which the Military Judge did not conduct).”

Appellant argues that he never put his character as a father in issue, thus offering the Government no avenue for inquiring about a specific instance of conduct relevant to his character as a father. The military judge disagreed at trial, and we disagree now. Granted, defense counsel did not ask Chief Tango a direct question to the effect of, “What is your opinion of his character as a father?” But those are not magic words, the only ones imbued to elicit testable character evidence, since “[t]he defense must accept responsibility not only for the specific evidence it offers in mitigation, but also for the reasonable inferences which must be drawn from it.”
. . .
Here, the Defense elicited evidence that, at the very least, created a reasonable inference that Appellant possessed the character of a good father. We can conceive no reason to elicit testimony from Chief Tango about his conversations with Appellant about their children other than to convey that, whatever Appellant’s faults as a husband, he is a good father deserving of mercy from the court so that he does not suffer continued separation from his children.With information in hand relevant to Appellant’s character as a father, the Government was not powerless to challenge the basis of Chief Tango’s opinion. That is, of course, if doing so met Mil. R. Evid. 403 muster [which the MJ did not do, but had she, it wouldn't have mattered].

In [United States v. Davis, 79 M.J. 329 (C.A.A.F. 2020] the U.S. Court of Appeals for the Armed Forces (CAAF) granted review to determine if the military judge properly instructed the members on the elements of an offense, though the court was ultimately unable to reach that issue since it was waived. Acknowledging that Rule for Courts-Martial (R.C.M.) 920(f) provided that “[f]ailure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes [forfeiture]," the CAAF went on:

Appellant did not just fail to object and thereby merely forfeited his claim. He affirmatively declined to object to the military judge’s instructions and offered no additional instructions. By expressly and unequivocally acquiescing to the military judge's instructions, Appellant waived all objections to the instructions, including in regards to the elements of the offense. As Appellant has affirmatively waived any objection to the military judge's findings instructions, there is nothing left for us to correct onappeal.

The same happened here. Defense counsel affirmatively declined to object to the military judge’s sentencing instructions or request any additional instructions both before and after the military judge instructed the members. Since the omitted instruction did not relate to new or unsettled law, the issue is waived, and there is nothing for us to review.

While the military judge committed error in finding "that the applicable unit of prosecution in this case is the separate strikes[,]" the error was not because the military judge did anything wrong, but instead because he was persuaded by this court's since reversed panel opinion in Malone. However, the "tipsy coachman" doctrine is an applicable principle of appellate law to this case, allowing an appellate court "to affirm a trial court 'that reaches the right result but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record."
. . . 
"When an assault [charged under Article 128b, UCMJ] is 'an uninterrupted attack comprising touchings "united in time, circumstance, and impulse" the allowable unit of prosecution 'is the number of overall beatings the victim endured rather than the number of individual blows suffered." Malone, 85 M.J. at 584 (quoting Clarke, 74 M.J. at 628)). Unlike Malone, the interruption here disunited the time, circumstance or impulse of the "beating."

Ordinarily, the Sixth Amendment’s Confrontation Clause “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U. S. 1012, 1016 (1988). In child-abuse cases, however, that rule sometimes gives way. Consistent with the Sixth Amendment, a court may screen a child witness from the defendant when “necessary to protect [the child] from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate.” 

Still, before invoking this procedure, a court must proceed with care. It must “hear evidence” and make a “case-specific” finding of “[t]he requisite . . . necessity.” Simply pointing to a state statute that authorizes screening, even one premised on “generalized finding[s]” of necessity, will not suffice. Because the Mississippi Supreme Court departed from these principles, we reverse.

Having resolved that much, we pause to underscore what we leave unresolved. Just because a constitutional error took place at trial does not necessarily mean a new one must be held. Even constitutional errors are sometimes subject to a “harmless-error” rule and do not require a new trial if the prosecution can show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” This Court has held that the denial of the right to face-to-face confrontation is among those errors “subject to that harmless-error analysis.” Accordingly, on remand the State remains free to argue, and the Mississippi Supreme Court remains free to consider, whether the error in this case warrants a new trial under the harmless-error standard.

Cheers, Phil Cave.