United States v. Muwwakkil represents a particularly interesting military defense case, in that an entire piece of evidence was stricken from the record due to the government’s negligence, and yet the case was permitted to carry on as normal.

The controversy of the case begins after an alleged rape victim provides an oral testimony to investigators. For approximately 2 hours and 15 minutes, she speaks to investigators and her statements are recorded using two different audio recording devices. However, when it comes time to review the recorded testimonies and supply the evidence to the defense, only 52 minutes are provided.

The government agency (Government, as the party is named within the case files) claims the secondary audio device completely failed during the testimony, and the majority of the recordings from the other device are simply lost. The Government did not even try to argue in its own defense, conceding readily that forgetful negligence on behalf of its agents led to the loss of the evidence. It does, however, make the claim that the testimony portions that were lost were “inconsistent” with statements the alleged victim had given in the past.


Losing evidence is not entirely a unique circumstance, and people in all professions do make big mistakes from time to time. The real reason U.S. v. Muwwakkil is interesting is that the presiding judge decided to strike the remaining 52 minutes of testimony from the evidence record since the rest of it was missing. Claiming that the Government did not act maliciously, nor did it carry out gross negligence, the judge ruled that what was left of the testimony was unusable and was potentially out-of-context without the rest of it.

An appeal was filed with the Court of Appeals for the Armed Forces (CAAF), claiming that the Jencks Act — “the government (prosecutor) is required to produce a verbatim statement or report made by a government witness (other than the defendant), but only after the witness has testified” — was violated. After months of review, the appeal was rejected. The CAAF deemed that the military judge made no erroneous decisions and did not violate any standards established by The Jencks Act.

In conclusion, the Jencks Act appears to be more up to interpretation than previously perceived, and that the Government cannot be “forced” to produce evidence that was inadvertently lost. In particular, evidence to be used, or to be stricken from court records, can hinge on if the evidence was collected during a pretrial investigation, whether or not it is a discovery issue, and so forth.

Military service members in a legal bind or possibly facing court martial can turn to Joseph L. Jordan, Attorney at Law. With years of trial-tested experience serving military members from all branches of the Armed Forces and stationed at bases around the country and world, Military Criminal Defense Attorney Joseph L. Jordan has become a trusted name in the world of military defense. Call (866) 361-4723 or contact the firm online for more information.