Navy-Marine Corps Court of Criminal Appeals

In United States v. Pyron, the court begins,

Appellee’s case is before us for a second time. In 2019, a general court-martial consisting of members with enlisted representation convicted Appellee, contrary to his pleas, of attempted rape of a child, rape of a child, and sexual abuse of a child. In 2021, this Court reversed Appellee’s convictions and authorized a retrial owing to implied bias of one of the members.2 In July 2021, the convening authority re-referred the same charges and specifications against Appellee to a general court-martial. The Government now appeals the following issue: Did the military judge abuse his discretion by excluding Appellee’s testimony during his first court-martial due to Government actions in the member selection process where: (a) this Court found the trial counsel’s recitation of voir dire answers was “an honest mistake,” and (b) under Harrison v. United States and United States v. Murray, suppression is only justified where illegal government action directly induced the accused’s testimony? We find that the military judge abused his discretion and reverse his decision.

The court begins its discussion with Harrison v. United States, 392 U.S. 218 (1968) from which comes the principal that an accused's trial testimony is generally admissible at a retrial.

This general principle is not a bright-line rule, however. Where a defendant’s prior testimony was induced after the prosecution put into evidence confessions or admissions that were illegally obtained, the testimony becomes the fruit of the proverbial poisonous tree and cannot be used against the accused at later proceedings.
. . . 
In the decades since Harrison, some jurisdictions, including our own, have expanded the logic of Harrison to other due process concerns, namely cases in which ineffective assistance of counsel directly results in an accused’s testimony.

So, from Harrison, we have two situations where there was a constitutional issue at play. What then of nonconstitutional issues, such as error in the "jury" selection process.

As the military judge recognized, the actions of the Government related to the member selection process did not rise to the level of illegal government action, nor did those actions relate in any meaningful way to the legality of Appellee’s admissions to NCIS. While the standard of review may be the same, we are unwilling to equate a military judge’s error in the member selection process with the erroneous admission of evidence illegally obtained by government agents. There are different public policy interests at stake.
. . . 
[The MJ erred
     [because there was no prior testimony] tainted by the illegal actions of government agents.
        [there was a] good-faith mistakes of [the] trial judge.

[Here] the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony. Murray stands for the proposition that the Government should not benefit on rehearing from testimony that was the direct result of the denial of the accused’s right to effective assistance of counsel. We do not construe that decision to authorize the extension of Harrison’s exclusionary rule to an error (vice illegal activity) during the voir dire process.

​United States v. Murray, 52 M.J. 671 (N-M. Ct. Crim. App. 2000).

A final note,

​Even if reliable evidence were presented that Appellee testified as a result of the inclusion of LT Alpha on the member panel, the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony.

It appears that MJ mistakes may not be a reason to exclude an accused's prior testimony. What if the MJ erred in permitting Mil. R. Evid. 413 evidence and the accused decided to testify? (Assume that the accused did not invoke his Fifth Amendment right to silence on cross-examination as to the Mil. R. Evid. 413 allegations.)

 It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial.

Harrison, 392 U.S. at 224.