What May / May Not Be Considered in Reaching Findings? RCM 918(c)

  1. bestmilitarydefenseucmjdefenselawyer19Matters properly before the court ( e.g., testimony of witnesses, real and documentary evidence). Does not include documents provided ex parte to the military judge. But see United States v. McCarthy , 37 M.J. 595 (A.F.C.M.R. 1993) (finding no prejudice when military “finds” missing performance evaluation report during deliberations and “adds” it to the record without explaining where he got it).
  2. Specialized knowledge – i.e ., gained by member from source outside court-martial –may not be considered.
    1. United States v. Davis , 19 M.J. 689 (A.C.M.R. 1984). Improper for court member tovisit the crime scene to determine quality of lighting. Convening authority should have ordered an evidentiary hearing to determine whether the accused was prejudiced.
    2. United States v. Johnson , 23 M.J. 327 (C.M.A. 1987). During deliberations,demonstration by member with martial arts expertise did not constitute extraneous prejudicial information where the demonstration was merely an examination and evaluation of evidence already produced.
  3. Member may not communicate with witnesses.
    1. United States v. Elmore , 33 M.J. 387 (C.M.A. 1991). Blood expert witness haddinner with the members. Extensive voir dire established the lack of taint.
    2. United States v. White , 36 M.J. 284 (C.M.A. 1993). Although any contact betweenwitnesses and members gives rise to perceptions of unfairness, it is not automatically disqualifying. In this case the voir dire disclosed in full the innocuous nature of the contact.
  4. Members may not seek information that is not available in open court. United Statesv. Knight , 41 M.J. 867 (Army Ct. Crim. App. 1995). Three members repeatedly quizzed bailiff/driver about matters presented in court out of presence of members, and sought his medical opinion – he was also an EMT – about bruising, which was a key issue in sexual assault prosecution.
  5. Split Plea. Unless the defense requests (or offenses stand in greater – LIOrelationship), panel members may not consider, and should not be told, that the accused earlier plead guilty to some offenses. United States v. Kaiser , 58 M.J. 146 (2003).
  6. Use of providence inquiry statements in mixed plea cases.
    1. Admissions in a plea of guilty to one offense cannot be used as evidence to support afinding of guilty of an essential element of a separate and different offense, but the elements established by the guilty plea inquiry and stipulation of fact may be considered in trial on contested charges, if the pled to charge is LIO of the contested charge. United States v. Abdullah , 37 M.J. 692 (A.C.M.R. 1993) (relying on United States v. Caszatt, 29
  7. M.R. 521, 522 (1960)). See also United States v. Rivera , 23 M.J. 89, 95 (C.M.A. 1986)(guilty plea to one offense can only be considered on findings when the plea is to a lesser included offense of the same specification as to which the plea is being offered into evidence).
  8. Plea of guilty may be used to establish common facts and elements of a greateroffense within the same specification, but may not be used as proof of a separate offense. The elements of a LIO established by guilty plea (but not the accused’s admissions made in support of that plea) can be used to establish common elements of the greater offense. United States v. Ramelb, 44 M.J. 625 (Army Ct. Crim. App. 1996).
  9. Admissions concerning the elements of the LIO made during providence inquiry canbe considered insofar as the admissions relate to common elements of the greater offense, but it was error for the military judge to consider the accused’s admissions that pertained to different elements of the greater offense. United States v. Grijalva, 55 M.J. 223 (2001).
  10. Matters taken into the deliberation room may be considered..bestmilitarydefenseucmjdefenselawyer20
    1. Notes of the court members.
    2. Exhibits admitted into evidence.
    3. Stipulations of fact are taken into the deliberation room so long as the military judgesufficiently ensures that the accused understood the effect of the stipulation of fact entered into with the Government. See United States v. Resch , 65 M.J. 233 (C.A.A.F. 2007).
    4. Testimonial substitutes (depositions, stipulations of expected testimony) do not gointo the deliberation room. See United States v. Austin , 35 M.J. 271 (C.M.A. 1992) (finding that a verbatim transcript of alleged victim’s testimony at pretrial investigation was not an “exhibit” that members could take into the deliberation room).
  11. Fact finder may not consider submitted Chapter 10. United States v. Balagna , 33M.J. 54 (C.M.A. 1991). Character witness acknowledged (upon prodding in open court by MJ) that he could not vouch for accused because had seen a “report.” When asked by the MJ what that report was, the witness responded “a request for Chapter 10.” Court finds no “extraordinary circumstances” requiring the declaration of a mistrial since the “adverse impact can be neutralized by other means.” Id. at 57. The MJ twice instructed the members that the evidence was inadmissible and prior to findings advised the members that it was to be “completely disregarded.” See also United States v. Vasquez , 54 M.J. 303 (C.A.A.F. 2001). I. Findings worksheet is used to assist members in putting findings in order. See Appendix 10, Manual for Courts-Martial, Forms of Findings.