Tuesday, July 25, 2017

A final comment on a completely different court-martial

His Honor Judge
Jeff Blackett
The end.  British court-martial partly held in the U.S.

BLUF: A British court-martial is (almost) completely different from a U.S. court-martial.

But first, I must confess error in the delay in a final report.  All I can say is that work expanded to fill the time available.

The facts of the case are common and are similar to 90+% of adult military sexual assaults in U.S. courts-martial, so nothing different there.  Two co-workers socialize after work, they drink alcohol together, sex happens and the interpretation of the events splits into two opposite interpretations.

Opening statements.

            The openings appeared, to be a rather bland recitation of the facts that would be offered through the coming evidence.  Personally, I prefer the giving of a “road map” to the case, as opposed to the emotion laden openings I hear from U.S. military prosecutors.           Advocacy trainers in the U.S. tend to teach that the opening statement is your second chance to argue your case (the first being voir dire of the members).  So the difference between advocacy and presentation was noticeable.

The first witness and the first piece of evidence.

            The first evidence was the playing of a video recorded interview of the complaining witness with an investigator.  In a U.S. military trial, the complaining witness (any witness) would first have to testify. 

            Even then, the video might not be admissible.  In the U.S., the witness’s prior out of court statements are hearsay unless they fall within one of many exceptions to the hearsay rule—for example an excited utterance made under the stresses, strains, and emotions of a very recent event.  The video would not qualify as an excited utterance.  If you want, you can view Military Rule of Evidence 803 here.  Two other ways the prior out of court statement could be offered is as either a prior consistent statement to rebut a challenge to an in-court statement, or as a prior consistent statement of an in-court statement.  Although here it would be unlikely that the full statement would be admitted, just a clip from the video.

            Then we had a live witness—behind a screen—the complaining witness (CW).  First the bailiff brought in a screen which was placed on the shelf in front of the CW.  All the gawkers had been asked to clear the room (with salutes and bows) before the CW was brought in to sit behind the screen.  All the members and judge could see her, the prosecution could see her, but the accused and his counsel could not see her while she testified.  The screen was set so that the defense counsel could see her during cross-examination.  This would not have happened in a U.S. court-martial under the circumstances.  So, the accused did not really get the right to face his accuser in court, just hear her.  Of course, all of this seemed a little odd, because everyone had just watched a little over three hours of her on a video.

No, objections.  There were no objections during testimony.  Objections seemed to be reserved until the close of the prosecution case.  The sole objection came from the judge, outside the presence of the members, who asked if it was necessary to watch the whole 3+ hours of video.  At the prosecutor’s insistence, he allowed it.  We observed differing reactions to the video from the members which I will not be commenting on other than to say I’m not sure the full showing was effective.  There was plenty of hearsay which a U.S. military defense counsel might have been found professionally ineffective if there were no objection.

Timing.  Court sat from 1000 to 1400, with a lunch break.  I’m used to starting at 0830 and going to at least 1700.  On occasion, I’ve been in court until 0300, as have some of my colleagues.  So, suffice it to say the judge’s expression of concern for the “long day,” was—well it was completely different.

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