2008 edition - Fort Sam Houston - U.S. Army

stituted for “in their possession” to make clear that the rule is not
limited to statements in the personal possession of counsel. See
18 U.S.C. § 3500(a). As to the meaning of “in the possession of
the United States,” see United States v. Calley, supra (testimony
at congressional hearing); see also United States v. Ali, 12 M.J.
1018 (A.C.M.R. 1982) (statements in possession of commander);
United States v. Boiser, 12 M.J. 1010 (A.C.M.R. 1982) (notes of
undercover informant); United States v. Fountain, 2 M.J. 1202
(N.C.M.R. 1976); United States v. Brakefield, 43 C.M.R. 828
(A.C.M.R. 1971) (notes taken by government psychiatrist).
(b) Production of entire statement. This subsection is taken from
Fed. R. Crim. P. 26.2(b).
( c ) P r o d u c t i o n o f e x c i s e d s t a t e m e n t . T h i s s u b s e c t i o n i s t a k e n
from Fed. R. Crim. P. 26.2(c). Failure of a judge to make the
required examination on request is error. United States v. White,
37 C.M.R. 791 (A.F.B.R. 1966) (decision under Jencks Act).
Failure to preserve the statement after denial or excision frustrates
appellate review and is also error under decisions interpreting 18
U.S.C. § 3500. United States v. Dixon, 8 M.J. 149 (C.M.A. 1979);
United States v. Jarrie, supra. However, the statement need not
be appended to the record (where it would become public) because
it is not error to consider the statement when forwarded
separately as this rule provides. United States v. Dixon, supra.
(d) Recess for examination of the statement. This subsection is
taken from Fed. R. Crim. P. 26.2(d).
(e) Remedy for failure to produce statement. This subsection is
based on Fed. R. Crim. P. 26.2(e). Although not expressly mentioned
there, the good faith loss and harmless error doctrines
under the Jencks Act would apparently apply. See United States v.
Patterson, 10 M.J. 599 (A.F.C.M.R. 1980); United States v. Kilmon,
10 M.J. 543 (N.C.M.R. 1980), United States v. Dixon,
United States v. Scott, United States v. Jarrie, and United States
v. White, all supra. Note, however, that under the Jencks Act
decisions the accused need not demonstrate prejudice on appeal
(United States v. Albo, supra; but see United States v. Bryant,
439 F.2d 642 (D.C. Cir. 1971); United States v. Ali, and United
States v. Boiser, both supra) and that the military judge may not
substitute the judge’s assessment of the usefulness of the statement
for the assessment of the accused and defense counsel
(United States v. Dixon and United States v. Kilmon, both supra).
(f) Definitions. This subsection is taken from Fed. R. Crim. P.
26.6(f).
I n s u b s e c t i o n ( 1 ) t h e i n c l u s i o n o f s t a t e m e n t s a p p r o v e d o r
adopted by a witness is consistent with 18 U.S.C. § 3500(e)(1).
See United States v. Jarrie and United States v. Kilmon, both
supra.
In subsection (2) the inclusion of substantially verbatim recordi
n g s o r t r a n s c r i p t i o n s e x c e e d s s o m e i n t e r p r e t a t i o n s u n d e r 1 8
U.S.C. § 3500. See, e.g., United States v. Matfield, 4 M.J. 843
(A.C.M.R.), pet. denied., 5 M.J. 182 (1978) (testimony in a prior
court-martial not accessible under 18 U.S.C. § 3500 but accessible
under a general “military due process” right to discovery).
Rule 914A Use of remote live testimony of a child
1999 Amendment: This rule allows the military judge to determine
what procedure to use when taking testimony under Mil. R.
Evid. 611(d)(3). It states that normally such testimony should be
taken via a two-way closed circuit television system. The rule
ANALYSIS
App. 21, R.C.M. 916(b)
further prescribes the procedures to be used if a television system
is employed. The use of two-way closed circuit television, to
some degree, may defeat the purpose of these alternative procedures,
which is to avoid trauma to children. In such cases, the
judge has discretion to direct one-way television communication.
The use of one-way closed circuit television was approved by the
Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990). This
amendment also gives the accused an election to absent himself
from the courtroom to prevent remote testimony. Such a provision
gives the accused a greater role in determining how this
issue will be resolved.
Rule 915 Mistrial
(a) In general. This subsection is based on the second and third
sentences of paragraph 56 e(1) of MCM, 1969 (Rev.). See generally
Oregon v. Kennedy, 456 U.S. 667 (1982); Arizona v. Washington,
434 U.S. 497 (1978); Lee v. United States, 432 U.S. 23
(1977); United States v. Dinitz, 424 U.S. 600 (1976); Illinois v.
Somerville , 410 U.S. 458 (1973); United States v. Jorn, 400 U.S.
4 7 0 ( 1 9 7 1 ) ; U n i t e d S t a t e s v . P e r e z , 2 2 U . S . ( 9 W h e a t ) 5 7 9
( 1 8 2 4 ) ; U n i t e d S t a t e s v . R i c h a r d s o n , 2 1 U . S . C . M . A . 5 4 , 4 4
C.M.R. 108 (1971); United States v. Schilling, 7 U.S.C.M.A. 482,
22 C.M.R. 272 (1957).
(b) Procedure. This subsection is based on paragraph 56 e(2) of
MCM, 1969 (Rev.). Because consent or lack thereof by the defense
to a mistrial may be determinative of a former jeopardy
motion at a second trial, the views of the defense must be sought.
(c) Effect of a declaration of mistrial. Subsection (1) is based on
the first sentence of paragraph 56 e(1) of MCM, 1969 (Rev.).
Note that dismissal of charges may have the same effect as
declaring a mistrial, depending on the grounds for dismissal. See
Lee v. United States and Illinois v. Somerville, both supra. Subsection
(2) is based on the first two sentences of paragraph 56
e(3) of MCM, 1969 (Rev). See also Oregon v. Kennedy, supra;
United States v. Scott, 437 U.S. 82 (1978); Arizona v. Washington,
United States v. Dinitz, Illinois v. Somerville, and United
States v. Jorn, all supra; Gori v. United States, 367 U.S. 364
(1961); United States v. Richardson, supra. Subsection (2) notes,
as paragraph 56 e of MCM, 1969 (Rev.) did not, that a declaration
of a mistrial after findings does not trigger double jeopardy
protections. See United States v. Richardson, supra. Moreover
subsection (2) notes that certain types of prosecutorial misconduct
resulting in mistrial will trigger double jeopardy protections. See
United States v. Jorn, and United States v. Gori, both supra. See
also United States v. Dinitz, and Illinois v. Sommerville, both
supra.
Rule 916 Defenses
(a) In general. This subsection and the discussion are based on
the third paragraph of paragraph 214 of MCM, 1969 (Rev.).
Motions in bar of trial, which were also covered in paragraph
214, are now covered in R.C.M. 907 since they are procedurally
and conceptually different from the defenses treated in R.C.M.
916.
(b) Burden of proof. This subsection is based on the fourth paragraph
of paragraph 214 of MCM, 1969 (Rev.). See also paragraph
112 a of MCM, 1969 (Rev.). See, e.g., United States v. Cuffee, 10
M.J. 381 (C.M.A. 1981). The first paragraph in the discussion is
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