ARTICLE 32 RECORDINGS -CONFRONTATION CLAUSE/DUE PROCESS.

United States v. Garcia, CGCMG 0258 (C.G. Ct. Crim. App. June 3, 2010) (unpublished) deals with the issue of confrontation clause/due process. The defense counsel requested the Government record and transcribe the Article 32 hearing or, alternatively, that the defense be allowed to record. The Government denied the request that it record and transcribe, but allowed the defense to do so subject to four conditions: (1) defense must create a "professional, verbatim transcript" of the hearing with recordings made by a "certified" civilian court reporter or "trained and qualified" Navy court reporter, at defense expense; (2) defense must submit name and "proof of qualifications" of the court reporter five days before the hearing; (3) defense must provide a copy of the verbatim record to the investigating officer no more than three weeks after the hearing concludes; and (4) defense must agree that time for producing the transcript shall be excludable delay under R.C.M. 707(c). Unlike the other Garcia case, the defense ultimately filed an extraordinary writ with the service court, requesting a court reporter be detailed to the Article 32 or, alternatively, that the Government not interfere with the defense recording the hearing and not require a transcript. The service court and later the CAAF denied relief. The Article 32 was not recorded. The defense made a motion to the military judge to reopen the investigation so the testimony could be recorded; the military judge denied the motion. The accused pled not guilty to all charges and specifications. On appeal, the defense argued the accused's Fifth and Sixth Amendment rights were violated by the Government blocking the recording of the Article 32 hearing.

Relying on United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), discussed supra, the court adhered to its prior holding that denying a defense request to record an Article 32 does not violate the Constitution. The court next considered the defense argument that the Government did not have authority for imposing conditions on the defense recording the Article 32 proceeding. According the court, "This begs the question: was it reasonable to require that a transcript be produced?" The court rejected the Government's argument that the parties may not know that a transcript is required until witness testimony at trial shows an inconsistency, so halting a court-martial to then produce a transcript would be inefficient and disruptive; the court reasoned that a recording does not require a transcript be produced at any stage of the court-martial. Had the military judge based his ruling solely on this basis, the appellate court would have held it to be an abuse of discretion. However, the trial judge also denied the request to reopen the Article 32 because "ordering a new Article 32 hearing to mostly repeat prior. The CAAF's summary disposition did not give a rationale for the decision and merely "ordered that the request for an emergency is hereby denied, and that the writ-appeal petition is denied without prejudice."