Court of Appeals for the Armed Forces

In Sigrah, the court explains R.C.M. 914 and the "Jencks Act.

We reiterate today that the Kohlbek framework is the appropriate prejudice analysis for preserved nonconstitutional R.C.M. 914 error.

​R.C.M. 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made. In its opinion, the lower court agreed that the military judge erred in her application of R.C.M. 914. However, the lower court determined that the error did not substantially influence the findings.

After review of the record, we conclude that the military judge’s error in not striking the relevant testimony pursuant to R.C.M. 914 had a substantial influence on the findings. Consequently, the lower court’s decision is reversed and the findings and sentence are set aside.

• Army Criminal Investigation Command (CID) began an investigation. [and] interviewed the victim, appellant, SPC D, and SPC B.
• All of the interviews were video recorded and temporarily stored on a CID server.
• [T]he relevant interview rooms were configured in a manner such that the video-recording feature automatically began whenever someone entered an interview room.
• [H]owever, the interviewing CID agent had to affirmatively press a button to engage the audio recording feature. "So we have the option to turn the audio on and off in the interview rooms, but the video is always recording.”"
• Video recordings of interviews—and the audio recordings of interviews, if the button was pressed— were automatically stored on a CID server with limited storage space.
• Unless a CID agent accessed the server and affirmatively preserved a specific recording, the recordings were automatically overwritten when the server’s storage capacity was reached.
• [I]t was CID policy at the time to preserve only subject interviews on a physical disc.
• [N[on-subject witness interviews would be overwritten approximately thirty to fortyfive days after the interview.
• [O]nly appellant’s CID interview— video and audio—was preserved on a physical disc.
• {I]nterviews of the victim and SPCs D and B were not affirmatively preserved by CID and, as such, were eventually automatically overwritten.
  • The victim and SPCs D and B did, however, provide written sworn statements to CID during their interviews, all of which were preserved and disclosed to the defense.
  • The victim wrote a sevenpage sworn statement; SPC D wrote a five-page sworn statement; and SPC B wrote a four-page sworn statement.
  • SPC D was advised of his Article 31(b), UCMJ, rights prior to his interview and waived his rights. Notwithstanding the rights advisement, SPC D’s interview was not affirmatively preserved.
• Following the victim’s direct examination, defense counsel moved to strike her testimony under R.C.M. 914 because the government failed to preserve her recorded interview.
  
• Trial counsel acknowledged the victim’s recorded interview contained statements and that the government could not produce those statements due to the recording being automatically overwritten.
  
• Trial counsel argued that despite the loss of the statements, there was no showing of bad faith on the part of CID and that the defense had access to the victim’s sworn statement. During the same Article 39(a), UCMJ, hearing, the defense indicated it would be making the same motion, supported with the same evidence, with respect to the testimony of SPCs D and B. The government maintained its argument concerning the absence of bad faith and the availability of sworn statements as to SPCs D and B.
  
• The military judge orally denied defense counsel’s R.C.M. 914 motions for all three witnesses and stated she would supplement the record with written findings of fact and conclusions of law.

Turning to Appellant’s claim that he was prejudiced by the military judge’s error, the lower court recognized tension in this Court’s framework for addressing prejudice under R.C.M. 914. The lower court interpreted this Court’s decision in United States v. Clark, 79 M.J. 449, 455 (C.A.A.F. 2020), as “explicitly” applying both the United States v. Kohlbek, 78 M.J. 326, 333 (C.A.A.F. 2019), and Rosenberg v. United States, 360 U.S. 367, 371 (1959), frameworks for determining prejudice under R.C.M. 914.

In the instant case, the lower court found prejudice under the Kohlbek framework, but no prejudice under the Rosenberg framework. Ultimately, the lower court determined that Rosenberg was the appropriate framework for addressing prejudice for R.C.M. 914 error.

Accordingly, the lower court concluded that the military judge’s R.C.M. 914 error did not substantially influence the findings.

The first step is for CAAF to conclude that “Given the similarities in language and purpose between R.C.M. 914 and the Jencks Act, we [have] conclude[ed] that our Jencks Act case law and that of the Supreme Court informs our analysis of R.C.M. 914 issues.”

At the trial level, if the government, as the opposing party, fails to produce a qualifying statement, R.C.M. 914(e) provides the military judge with two remedies for the government’s failure to deliver the qualifying statement: (1) “order that the testimony of the witness be disregarded by the trier of fact” or (2) “declare a mistrial if required in the interest of justice.” However, when, as here, the military judge errs in denying a R.C.M. 914 motion, we must determine whether this error prejudiced Appellant. See Article 59(a). The test for prejudice is “based on the nature of the right violated.” Clark, 79 M.J. at 454. The prejudice standard that we apply depends on whether the defect amounts to a constitutional error or a nonconstitutional error. Id. Our review for prejudice is de novo.

Next, CAAF concludes the error is nonconstitutional because the Appellant was otherwise afforded Sixth Amendment confrontation. For the nonconstitutional error here the court

weighs: (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question.”

[T]he Government argues that the military judge’s erroneous R.C.M. 914 ruling did not materially prejudice Appellant’s substantial rights because Appellant possessed “‘substantially the same information’ ” —the witnesses’ written sworn statements—as he would have garnered from their recorded interviews. The Government asserts “that the predicate question to determining prejudice related to an R.C.M. 914 violation is whether an appellant possess[es] an adequate substitute for the lost statement?” If so, the Government contends that the error is harmless and the prejudice analysis ends. If not, then the Government argues that appellate courts should apply the Kohlbek framework to determine whether the appellant was prejudiced.

Appellant argues that the Kohlbek framework provides the initial prejudice analysis for preserved nonconstitutional R.C.M. 914 error. Appellant contends that if the Kohlbek test shows an appellant’s substantial rights were materially prejudiced—as the lower court found—the R.C.M. 914 prejudice analysis ends and the Rosenberg framework does not apply.

In Clark, reference to Rosenberg was not intended to create a separate prejudice test for R.C.M. 914 violations. Instead, in Clark, we cited Rosenberg as additional support for our Kohlbek prejudice analysis. This type of additional support is permitted for R.C.M. 914 violations.

CAAF finds prejudicial error because 

[T]he Government would have had a very weak case.
[W]ithout these testimonies, Appellant would have had a strong case.
[T]he testimonies were material.
[T]he testimonies were of high quality.

​Unlike in Clark, had the testimony of the victim and SPCs D and B been struck at trial based on R.C.M. 914, there would have been no independently admissible evidence to prove Appellant’s guilt. Considering the other evidence admitted did not establish Appellant’s guilt, the testimony of these three witnesses played a major role in the prosecution of Appellant. 

Judge SPARKS delivered the opinion of the Court, in which Chief Judge OHLSON, Judge MAGGS, Judge HARDY, and Senior Judge EFFRON joined. Chief Judge OHLSON filed a separate concurring opinion, in which Judge MAGGS joined. Judge MAGGS filed a separate concurring opinion, in which Judge HARDY joined. 

[CJ Ohlson] ​I join the Court’s opinion in full. I am writing separately just to briefly underscore that this is a rule-driven result rather than a constitutionally required result. Therefore, although the current language of Rule for Courts-Martial 914 has compelled us to conclude that the military judge in this case erred in not striking the testimony of the Government witnesses, nothing in our opinion should be construed as precluding the President from amending this language in the future.

[J. Maggs] I write separately to identify and discuss what I perceive to be the ultimate cause of the present litigation. Put simply, R.C.M. 914 is ill-suited for handling cases in which the government calls witnesses at trial but cannot provide the witnesses’ prior statements to the defense because those prior statements have been lost. Despite inventive judicial efforts to address this issue, and to some extent because of these efforts, confusion and disagreement will likely persist if military judges are expected to continue to apply R.C.M. 914 to cases involving lost records, unless the text of R.C.M. 914 is revised to address the problem of lost records explicitly.1
     n.1. 1 In 2020, the Department of Defense proposed amendments to R.C.M. 914(e) that would address lost records. See Dep’t of Defense, Manual for Courts-Martial: Proposed Amendments Annex § 1(h) (Feb. 11, 2020), https://www.regulations.gov/document/DOD-2020-OS-0013-0001 (last visited Aug. 30, 2022) [hereinafter DoD Proposed Amendments]. The President, however, has not yet acted on these proposed amendments. But see,

     n.3. ​The amendments that the Department of Defense has proposed would not alter R.C.M. 914(a) and therefore do not address this issue. See DoD Proposed Amendments Annex § 1(h) (amending only R.C.M. 914(e)).

Had the proposed rule change been effected

R.C.M. 914(e) is amended as follows: 

     (e) Remedy for failure to produce statement.

          (2) Failure to comply in good faith In the event that the other party cannot comply with this rule because the statement is lost, and can prove, by a preponderance of evidence, that the loss of the witness statement under subsections (a) (b), and (e) of this rule was not attributable to bad faith or gross negligence, the military judge may exercise the sanctions set forth in subsection(e)(1) of this rule if 

               (A) evidence is of such central importance to an issue that it is essential to a fair trial, and

                    (B) there is no adequate substitute for such evidence.

After agreeing that the Rule is an important safeguard for an accused, Judge Maggs argues

​The texts of R.C.M. 914(a)(1) and (e), however, have an important shortcoming. As written, these provisions are inapt for addressing situations in which the government formerly possessed a record of a witness’s prior statements but no longer possesses any record of them at the time of trial. The text of R.C.M. 914(a)(1) authorizes the military judge to order the government to produce any statement that “is . . . in the possession of the United States”; the rule says nothing about statements that once were in the government’s possession but are not currently in its possession. (Emphasis added.) Accordingly, if the government has lost all records of a statement, the text of R.C.M. 914(a) does not expressly authorize the military judge to do anything.

The text of R.C.M. 914(e) has similar limitations.

By pointing out these gaps in the texts of R.C.M. 914(a)(1) and (e), I am not suggesting that, as a matter of policy, the defense should have no remedy if the government loses its records of prior statements of witnesses. On the contrary, as explained above, having the prior statements of witnesses is very important to the defense and in my view the R.C.M. should provide the defense some form of relief if the government, through its own fault, cannot provide them. All that I am saying is that the current texts of R.C.M. 914(a)(1) and (e) do not expressly provide the defense any recourse.
. . . 
​Perhaps this Court’s interpretations of R.C.M. 914(a)(1) and (e), although well-intentioned, have been misguided because they have focused on policy considerations rather than the text of the rule. Maybe this Court should have left the policy making to the Department of Defense and the President. But that is not the issue here because neither party has asked us to overrule any precedent. Yet if the kind of litigation that occurred in this case is to be avoided, then R.C.M. 914 should be revised to address expressly what should happen in cases in which the government was in possession of statements but then lost them. If R.C.M. 914(a) should apply in any situations in which the government “is [not] . . . in possession” of a statement, then R.C.M. 914(a) should identify those situations explicitly. And if good faith, harmless error, or other exceptions to R.C.M. 914(e) should exist, then R.C.M. 914(e) should identify such limitations explicitly. In the meantime, efforts to fit the problem of lost statements into the current text of R.C.M. 914(e) are likely to continue to generate the kinds of disagreements that we see in this case.

Could CID have avoided this problem if their operating regulation required them to immediately preserve all audio or video recordings to a CD and that the CD be stored as evidence?

Any thoughts on the call to action?

What effect, if any, will Sigrah have on United States v. Grindstaff, No. 20200315 (A. Ct. Crim. App. Aug. 30, 2022? Are there grounds to ask for reconsideration?