Denial of Request to Tape Record Article 32 Proceeding is Not a Violation of Confrontation Rights

In United States v. Daniel Garcia, __ M.J. __, No. 1317 (C.G. Ct. Crim. App. June 3, 2010) Seaman Daniel Garcia was convicted, contrary to his pleas, of aggravated sexual assault and wrongfully furnishing alcohol to minors. The Convening Authority (CA) denied Garcia’s request to have the government tape-record the proceedings in his Article 32 investigation. The CA approved Garcia’s request for the defense to record the proceedings, but only subject to a number of conditions, including the condition that the defense produce a professional, verbatim transcript. The defense sought extraordinary relief from the Coast Guard Court and C.A.A.F.; both courts denied relief. An Article 32 investigation was completed and was not recorded.

The CGCCA had to determine if the CA’s decisions regarding the defense request to tape record the Article 32 proceedings violated Garcia’s Sixth Amendment right to confrontation. The CGCCA unanimously held that the CA’s decisions did not violate Garcia’s constitutional confrontation rights.

The court, without further analysis, adhered to its holding in United States v. Elijah Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009) that “there is no Constitutional violation in denying a defense request to record an Article 32 investigation.”

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