Courts of Criminal Appeals

Air Force

United States v. Goodwater

AFCCA has decided that in a prosecution for distribution of CP, CyberTips and some NECMEC business records are still subject to the Confrontation Clause.

We agree with Appellant that one of the prosecution exhibits was erroneously admitted during the findings portion of the trial on the distribution specification (Specification 2 of the Charge) in that it contained testimonial hearsay.
. . .
[T]he National Center for Missing and Exploited Children (NCMEC) received a report from the social media platform related to a suspect with a certain username and a certain email address which uploaded child pornography to the social media platform server. After receiving this report, NCMEC representatives generated a “CyberTipline report.” This report contained the unaltered information submitted from the reporting individual from the social media platform. The report was forwarded to the Las Vegas Metropolitan Police Department as well as the Air Force Office of Special Investigations (OSI) along with the suspected image of child pornography as submitted by the social media platform.
. . .
The Government called BA, a division director from NCMEC, to testify at trial. Trial counsel sought to admit the NCMEC CyberTipline report and the accompanying image during this testimony. Additionally, trial counsel offered a business record affidavit from the individual who oversaw the NCMEC CyberTipline to establish the foundation for the admission of the report for this case. Trial counsel did not present any testimony from a representative from the social media platform. Trial defense counsel objected to both admission of the report and of the accompanying image, arguing that they contained testimonial hearsay from the social media platform.

AFCCA found the NECMEC report was a compilation of information and forwarded to law enforcement for the purpose of reporting and investigation. Because no-one from the social media company testified, the court found the prosecution had not overcome the confrontation objection. Further, "[c]ompounding the error, trial counsel relied heavily on the report in the findings argument."

The AFCCA was applying what we used to consider under earlier versions of the rules the "prepared for the purpose of prosecution" exception to the business records exception.

​“Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). “To rank as testimonial, a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution.” Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (internal quotation marks and citations omitted).

Because of the failure to call a witness from the relevant social media platform that forrwarded a tip to NECMEC, the court found the admission of the report error that was not harmless beyond reasonable doubt and dismissed the specification. In reassessing the sentence the court reduced the initial 32 months to 24.

Army

United States v. Brassfield, __ M.J. ___
(Army Ct. Crim. App. 2024) (en banc)

The court reaffirms that an accused may raise the parental discipline defense but finds the Appellant's actions unreasonable, so there is no relief.

CAAF  first recognized the parental discipline defense to an assault charge in United States v. Brown, 26 M.J. 148 (C.M.A. 1988). Citing to the Model Penal Code, which has two requirements.​

(a) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and

(b) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.

Essentially, it requires a totality of the circumstances and factual analysis.

In United States v. Robertson, the CMA reiterated "[t]he second prong of the [parental discipline] test is one of reasonable force." Likewise, in United States v. Rivera, "CAAF" reaffirmed that "Brown established a text of contextual reasonableness in determining when proper parental motive turns to criminal anger, or necessary force becomes a substantial risk of serious bodily harm." This requires a review of the circumstances of each case regarding the force used as "[c]learly what is reasonable between a father and his 13-year-old son may be unreasonable with an infant."

ACCA in United States v. Ruiz, ARMY 20210541, 2023 CCA LEXIS 76, at *3 (Army Ct. Crim. App. 14 Feb. 2023) (summ. disp.) suggests that reasonableness is reviewed objectively, ("[T]he law also -- and predictably -- criminalizes a parent's use of force that an objective person would view as unreasonable")[.] In addition, ACCA suggests a lack of intent or lack of knowlege serious injury cab occur may be required to establish the defense. The court cites to the Benchbook.

"Unreasonable or excessive force is that designed [intended?] to cause or known [knowingly?] to cause a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain [I]f you are satisfied beyond a reasonable doubt that at the time of the accused's act(s) the force used was unreasonable or excessive, then the act(s) may not be excused as permissible."