Court of Appeals for the Armed Forces

In Bench, (the 21st published opinion this term) the issue was

​[W]hether Appellant’s right to be confronted by a complaining witness was violated when trial counsel misled Appellant’s son by telling him that Appellant was not watching his son’s remote live testimony. Because Appellant failed to preserve this issue at trial, the Court must decide whether any error was plain or obvious. We hold that it was not.

[corrected] ​The court first discussed but did not find waiver of the issue. The court proceeded to a plain error analysis. 

​The Government more reasonably argues that Appellant waived this issue by operation of law under the plain language of Rule for Courts-Martial (R.C.M.) 905(e) (2016 ed.). That rule provides that such claims “must be raised before the court-martial adjourned for that case and, unless otherwise provided in [the Manual for Courts-Martial, United States], failure to do so shall constitute waiver.” R.C.M. 905(e). We acknowledge that the language of the rule would appear to be dispositive on this point in the Government’s favor, but as this Court has recognized in the past, there has long been disagreement in our own precedent about whether the word “waive[d]” in R.C.M. 905(e) actually means “waived” (as defined by the Supreme Court in Olano, 507 U.S. at 733), or instead means “forfeited” (the failure to preserve an issue by timely objection). See Hardy, 77 M.J. at 441–42 (noting the disagreement in this Court’s precedents); id. at 445 (Ohlson, J., dissenting) (same). Two of our more recent precedents lead us to conclude that regardless how one interprets the word “waive[d]” in R.C.M. 905(e), that rule does not extinguish a claim when there has been plain error.

The court concludes the error was neither plain nor obvious to “the military judge.” No relief. Does this conclusion add a new factor to the plain error analysis or merely clarify how the error may be present?
 
The military judge asked extensive question about the remote live testimony of the victim, including during actual direct examination. “For example, as soon as EC began testifying, he became distracted by the paper on the livestream screen (there to obscure the witness and accused from seeing each other). EC asked why half the screen was covered, and trial counsel answered that it was to “make sure [EC] would be able to answer [the] questions, and not get distracted.”Direct examination continued.

​EC:] Are there people in there?

[TC:] No, not so many.

[EC:] What?
 
[TC:] Nope, you just have to worry about us right here, okay? So you’ve got me, and [the SVC], and [the DC]. And so we’re just--
 
[EC:] —But are they going to—but are there going to be people--
 
[TC:] —No, just the three of us right here, and we’re going to ask you some questions, and then you’ll be all done and you can go—go back outside, okay?

​Later.

​[EC:] —What—the court can hear us?
 
[TC:] All you’ve got is the three people right here.
 
[EC:] But why is it—I thought there were court [sic] to hear us.
 
[TC:] Well, who you’ve got to hear you right now--
 
[EC:] We’re just practicing?
 
[TC:] We’re talking through you, yeah. But we can hear you. And we just need you to. . .

​The defense was not objecting and there’s no indication in the decision that the MJ interjected to clarify who could hear the witness.
 
The specific issued granted was,

​“Whether lying to a witness about Appellant’s presence in the courtroom to secure testimony materially prejudices Appellant’s Sixth Amendment right to confrontation
. . . .
. When an appellant fails to raise a Confrontation Clause objection at trial, this Court “consider[s] the particular circumstances of [the] case to determine whether there was waiver,” id. (citing United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008)), but “appl[ies] a presumption against finding a waiver of constitutional rights.” Id. (citing Sweeney, 70 M.J. at 304).”

​The court dismissed the Government’s argument for affirmative waiver finding only an “unintentional waiver.” The court does agree with the Government that the issue was waived as a ”matter of law.” After discussion of the issue the court concludes forfeiture applies and that they can proceed with a plain error analysis.

The court then takes on the Supreme Court’s decision in Coy v. Iowa  and Craig. In doing so, the court rejected Appellant’s argument that the remote live testimony was itself error.

​“These two cases do not necessarily resolve the debate about the meaning of the word “waive[d]” in R.C.M. 905(e) with respect to all claims and all cases. But we agree that in this case, R.C.M. 905(e) does not extinguish, by operation of law, Appellant’s ability to argue for the first time on appeal that the military judge committed plain or obvious error by admitting EC’s testimony. Accordingly, we consider the merits of Appellant’s Confrontation Clause claim.”

​Disposing of that argument the court goes on to say that “Appellant’s argument is further undermined by the fact that “all of the other elements of the confrontation right” including “oath, cross-examination, and observation of the witness’ demeanor” were satisfied. Craig, 497 U.S. at 851.”

“We have no reason not to conclude that Appellant’s confrontation right was satisfied given that the panel was able to “ ‘look at [EC], and judge by his demeanor upon the stand and the manner in which he [gave] his testimony whether he is worthy of belief.’ ” Green, 399 U.S. at 158 (quoting Mattox v. United States, 156 U.S. 237, 242–43 (1895)). The Supreme Court, and this Court, have made clear that remote testimony does not infringe on an accused’s confrontation right if it is necessary as a matter of public policy. Craig, 497 U.S. at 849. The Confrontation Clause protects a procedural right that seeks reliability “by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61. That right is satisfied when the individual testifying takes an oath and is subject to cross-examination that is observed by the panel. Craig, 497 U.S. at 851. Because all those elements were present here, we cannot say that it should have been plain or obvious to the military judge that trial counsel’s misstatements would prejudice Appellant’s right to confrontation. Because Appellant cannot establish the second prong of the plain error test, we need not consider the first or third prongs.”

The court also notes the absence of any controlling precedent on the issue and partially concludes that where there is no prior precedent they cannot be plain error.
 
AFCCA’s decision is affirmed.
 
The issue is a narrow one. Perhaps in the future it will be avoided by TC or the MJ announcing to any witness those who are present in the courtroom and can hear but not necessarily see the witness. This has been common practice when witnesses testify by phone.
 
Some years ago D"ML”HS ahd I had the chance to watch a British court-martial where the accused was charged with a sex offense. When the complaining witness was called, a cardboard barrier was erected around the witness box. The only people who could see the witness were the judge, the prosecutor, the defense counsel, and the members (everyone in the room could hear). The accused’s view was blocked, as was the public’s. Interestingly, the prosecution had already played the full forensic interview of the complaining witness to the judge, members, parties, and the public. 

Cheers.