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Tim Bilecki

Article 32 Recordings – Confrontation Clause/Due Process

In United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), review denied, 69 M.J. 83

(C.A.A.F. 2010) the accused pled guilty to several offenses pursuant to an approved pretrial agreement. Before the Article 32 investigation, the defense requested the Government record the proceedings or, alternatively, that the defense be allowed to record the proceedings. The

Government denied the request that it record the hearing but noted the defense would be allowed to record the proceedings subject to three fairly-rigorous conditions: (1) defense must produce a “professional, verbatim transcript” of the hearing at defense expense; (2) defense must provide a copy of the verbatim transcript to the Investigating Officer at defense expense; and (3) defense must agree that time for producing the transcript shall be excludable delay under R.C.M. 707(c). The defense objected to these conditions and requested reconsideration by the appointing authority. After that request was denied, the Article 32 was not recorded. The defense filed a timely motion for a new Article 32 hearing, which was also denied. The accused then pled guilty. On appeal, defense argued the Government’s denial of the request to record proceedings violated the accused’s Fifth and Sixth Amendment rights. The CGCCA rejected these arguments and affirmed the case.

The court quickly dismissed the Fifth Amendment claim; the defense cited federal and state cases that allow a party to record proceedings that are not otherwise captured in an official record “in furtherance of appeal rights.” Because the Article 32 investigation does not make a final decision of the accused’s guilt, these cases do not apply. The court noted the Confrontation Clause merely requires cross-examination and (possibly) the ability to admit prior sworn testimony under M.R.E. 801(d)(1)(A) (inconsistent statement in prior testimony) or 804(b)(1) (prior testimony). The defense in this case was allowed to take notes at the Article 32 hearing, which allowed for adequate cross-examination and for admitting the prior testimony. The court acknowledged that without a recording of the Article 32 testimony, the conditions for the defense to admit the testimony would be “less than ideal,” but the Confrontation Clause only guarantees an “opportunity” for effective cross-examination.23 Because the defense had the opportunity to confront Government witnesses, there was no Sixth Amendment violation. Under R.C.M. 405(j)(2)(B), the report of investigation need only include the “substance of the testimony taken” as opposed to a verbatim transcript. R.C.M. 405(d)(3) allows a “reporter” to a be detailed to the hearing, but does not require such an appointment. As such, the procedural requirements for an

Article 32 hearing were satisfied. The court noted, “This is not to say that the convening authority did not abuse his discretion in denying the defense request to be permitted to tape-record the proceedings and provide tapes to the government.” The court noted, “As an alternative holding, we find that Appellant’s guilty plea waived the issue of whether the military judge abused his discretion” (citations omitted). This was arguably a stronger and case dispositive basis for the court’s decision. The CGCCA acknowledged the difficulty in admitting prior testimony that had not been recorded or reduced to a verbatim record: In a typical cross-examination scenario, counsel might ask the witness about testimony given by the witness at the Article 32 investigation that was inconsistent with the witness’s direct testimony at trial. Having done so, under M.R.E. 801(d)(1), counsel would be able to introduce the prior inconsistent testimony, since testimony at an Article 32 investigation is given under oath. This could be done by testimony of a person who attended the Article 32 investigation. The lack of a recording for either the cross-examination or for the introduction of the prior testimony may be less than ideal, but Appellant does not have a right to the ideal. “confront and cross-examine” Government witnesses); R.C.M. 910(f) (providing that an unconditional guilty plea “which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made”); United States v. Bradley, 68 M.J.

279, 281 (“An unconditional plea of guilty waives all non jurisdictional defects at earlier stages of the proceedings.”).

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