EI INCUMBIT PROBATIO QUI DICIT.

Court of Appeals for the Armed Forces to Reconsider R.C.M. 914

Rule of Court Martial (R.C.M.) 914 has been coined by many as the “military Jencks Act” in that it requires complete witness statements, reports, and testimonies to be provided upon request after the same witness testifies in court-martial. The purpose of R.C.M. 914 is to allow the opposing party – commonly the defense – to get a “fair and complete” view of the origination of statements provided by a testifying witness in order to seek out inconsistences and fabrication, if there are any. In other words, if a witness takes the stand in court-martial, then the party that summoned that witness must be ready to produce and provide the entirety of reports and interviews correlated to their on-stand testimony.

Under R.C.M. 914(e), if the entire relevant statement cannot be produced for any reason, then the military judge should dismiss the testimony or declare a mistrial, unless the statement has been excised and approved by the military judge. As it is written, it can be assumed that R.C.M. 914 can be used to protect a defendant when the prosecution is unable to produce an entirely complete record of statements and testimonies from a called witness.

However, the interpretation and fair use of R.C.M. 914 has been called into question by the United States Court of Appeals for the Armed Forces (CAAF) after two seemingly contradictory applications of it in the cases of U.S. v. Muwwakkil and U.S. v. Normal L. Clark, Sr. Within Muwwakkil, the military judge used R.C.M. 914 to strike a testimony from the case record because most of the original testimony during pretrial investigations had been lost due to clerical errors. On the other hand, in Clark, the incomplete testimonies provided by the defendant were permitted to stand despite a significant portion of the original testimonies also being lost due to a clerical error. What’s more, defending Clark was convicted, largely due to the incomplete testimony.

The CAAF must now ask if the military judge in Clark erroneously applied R.C.M. 914, what sort of review standard should have been used instead, and did any error in judgement occur due to prejudice?

Details of U.S. v. Muwwakkil

To get a clearer picture of why the CAAF is reconsidering R.C.M. 914 and its appropriate applications, the details of both U.S. v. Muwwakkil and U.S. v. Norman L. Clark, Sr. must be understood, beginning with a closer examination of the details in Muwwakkil.

Army Staff Sergeant Muwwakkil stood accused of rape and sexual assault. The alleged victim supplied a testimony to military crime investigators, totaling more than 2 hours and 15 minutes of recorded statements. However, a clerical error with no clear origination had caused the majority of the recordings to be lost, leaving only 52 minutes intact.

When the defense demanded production of the entire testimony using R.C.M. 914, it received just the 52-minute portion, despite the entire testimony apparently being of value to the prosecution’s case. The defense successfully argued that the incomplete status of the testimony should render it null and void, as R.C.M. requires, prompting the ruling military judge to dismiss the entire testimony from the case. Without the groundwork provided by that testimony, Muwwakkil could not be convicted in confidence. The case was moved up to the Army Court of Criminal Appeals (CCA) by an appealing prosecution, but the CCA held the lower court’s decision as justified.

In its opinion of the matter, the CCA argued that the loss of the complete testimony should have been addressed during pretrial stages. That is to say, the prosecuting party should have known the majority of their witness testimony was lost before bringing that witness to the stand and before being reliant on that testimony. Under both R.C.M. 914 and the “parent” Jencks Act, it was found that there was no choice but to remedy the mistake by dismissing the incomplete testimony.

Details of U.S. v. Norman L. Clark, Sr.

In Clark, defending Army Sergeant Norman L. Clark, Sr. was accused of sexually assaulting a child, his own four-year-old daughter, known in records as AC to preserve privacy. After a pediatric nurse diagnosed AC with genital herpes, it was concluded a child so young could only contract the disease through “non-innocent” behavior. This prompted investigators to open medical records of likely suspects and immediate family members, revealing that Clark was positive for the same genital disease.

Clark came to Criminal Investigation Command (CID) agents willingly to discuss the investigation and the case, waiving his rights entirely during a first round of discussions. On the first day of interviews, he was recorded as giving numerous incriminating statements but nothing as far as a clear admission to the sexual assault of his daughter. On the second day, he once again came to CID voluntarily, waived his rights, and discussed the investigation. It was during this second round of interviews that he admitted directly to sexually assaulting his child.

As is standard procedure, both interviews were recorded, to the knowledge of Clark at the time. CID agents saved the first day’s interviews onto three CDs and the second day’s interviews onto two more. However, it would be months later that it was discovered that the fourth CD – the one that should contain the first part of the second day’s interviews – was actually a duplicate of the first CD that showed the start of the first day. After lengthy searching, it was deemed that the intended contents of the fourth CD were lost forever, and that the first portion of the second day’s interviews were gone with it.

The defense argued that R.C.M. 914 demanded the entirety of Clark’s interviews be dismissed from the case since the prosecuting party that relied on those testimonies could not produce them in their entirety. At the least, the defense argued the second day’s interview should be removed from the record. Perhaps capitalizing on the incomplete record of that interview, the defense tried to argue that Clark had been “cajoled” by the investigators into admitting to sexually assaulting AC, but that it was unseen due to the misplaced footage.

Surprisingly to some, though, the military judge did not find compelling grounds to dismiss the entire testimony or what was preserved of the second day’s interviews. It argued that an extensive review of the four CDs that remained showed that Clark had not been harassed by the investigators into giving a confession. Within the recordings, Clark can be seen receiving food, accepting breaks, and generally not displaying any alarmed or fearful behaviors. Furthermore, the court noted that the defense did not attempt to ever suppress Clark’s statements on grounds that they were obtained through coercion. The matter only came up after it was uncovered that a portion of the testimonies were unrecoverable.

Lastly and perhaps most importantly, the ruling court – and the higher Army CCA after the case was appealed upwards – argued that there was significant and satisfactory evidence still preserved in the four CDs. Clark had apparently said and done enough outside of the lost recording to necessitate criminal charges, prosecution, and eventual conviction. That is to say, even if no portion of the testimony was lost due to clerical error, what was allegedly discussed then could not be enough to undo or supersede the other incriminating and convincing statements Clark willingly provided elsewhere.

To all of these ends, R.C.M. 914 was not applied in full and the testimony was allowed to stand in partiality.

Do Muwwakkil & Clark Contradict One Another?

The question that now goes before the CAAF is whether or not the decisions in Muwwakkil and Clark are contradictory. R.C.M. 914 was applied to the former and not the latter. Is it summarily incorrect to apply the rule to one of these cases and not the other? Or, are there enough differences between the subjects and case details to justify the seemingly varied application of a single rule?

In Muwaakkil, approximately 35% of the relevant testimony was misplaced. In Clark, approximately 20% was lost. Does the proportional amount deemed irrecoverable factor into how to apply R.C.M. 914? Or, does the decision become one of a judge’s discretion after evaluating what remains of an incomplete testimony and what was apparently lost. Once a recorded portion of a testimony is deleted forever, it is only speculation as to what was or was not done during those lost moments, which threatens to turn a case into he-said/she-said when it could have been purely factual.

Is the created uncertainty of the situation grounds to strengthen R.C.M. 914 so it must always apply to any court-martial in which a testimony is partially lost? Even if a mere minute of a multi-hour interview is deleted? Or, does it stand to say that R.C.M. 914 should be narrowed, applying to even less scenarios than it does now, to eliminate a back-and-forth over what could be inconsequential moments of testimony misplaced? This is the difficult decision the CAAF must eventually make, weighing the key details of both Muwwakkil and Clark, and ultimately shaping the face of court-martial processes for the future.

For more information about this important military law and court-martial case as it develops, be sure to return to the blogof Joseph L. Jordan, Attorney at Law regularly. Attorney Joseph Jordan and his legal team are among the most trusted names in military criminal defense representation in the world, having spent years protecting the rights of military service membersin bases across the globeand from all types of military crime accusations and charges. If you have been accused of violating the Uniform Code of Military Justice (UCMJ) and now face a criminal trial or court-martial that could destroy your military career and remove your freedom, call his firm at (888) 616-6177 at once.