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.
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.
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.”
CAAF finds prejudicial error because
[T]he Government would have had a very weak case.
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
Had the proposed rule change been effected
R.C.M. 914(e) is amended as follows:
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.
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?
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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