Remedial Actions for UCI
If the defense raises present sufficient evidence, which if true, constitute UCI, then the burden is going to shift to the government to prove that those facts did not exist; if they did, that the facts do not amount to UCI; or if the facts do amount to UCI, then the proceedings will not be affected by UCI. By taking remedial actions – either the convening authority before referral, or the military judge or convening authority after referral – the government may be able to prevent the UCI from tainting the proceedings.
The remedies that follow are not mandatory for each case. United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986). Remedies should be appropriately tailored for each case. Before trial (directed by the convening authority or SJA).
- Rescind or clarify letters and pronouncements. See United States v. Rivers, 48 M.J. (C.A.A.F. 1998); United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008).
- Tell the witness that they need to testify and that no one is intending to influence him or her. See United States v. Bradley, 48 M.J. 777 (A.F. Ct. Crim. App. 1998).
- Reprimand the offending official in front of the people that he tried to improperly influence. United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986).
- Rescind or clarify letters and pronouncements. United States v. Griffin, 41 M.J. 607 (A. Ct. Crim. App. 1994).
- Tell the subordinate commander (in writing) that he or she is free to choose any disposition that he or she thinks is appropriate. See generally United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004).
- The defense can seek to waive the issue in exchange for a favorable pretrial agreement. United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).
At trial (directed by the military judge or convening authority)
- Allow extensive voir dire. United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).
Allow extensive fact finding, to include interviews of and cross examination of those who may have committed UCI. United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003).
Issue curative instructions. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).
- Order the government to retract the offending policy statement. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998).
Grant continuances to investigate the issue. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010).
Issue a blanket order to produce all witnesses requested by the defense. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998).
- Advise each witness that it is his duty to testify and assure them that no adverse consequences would follow. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010) (the parties fashioned a letter that was to be given to potential witnesses).
- Order that the government to transfer the person who committed UCI. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999).
- Prevent the government from calling aggravation evidence. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).
Not allow the government to attacked the accused’s reputation by opinion or reputation testimony. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 553).
- Give the defense wide latitude with witnesses. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).
- Allow the accused to testify about what he thought witnesses might have said (as substantive evidence on merits or E&M). United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).
- Preclude the government from presenting evidence through direct or cross examination about the accused’s rehabilitative potential. United States v. Souther, 18 M.J. 795, 796 (A.C.M.R. 1984).
- Offer to sustain any challenge for cause against any member who was present in command during period of UCI. United States v. Souther, 18 M.J. 795, 796 (A.C.M.R. 1984); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 553).
- Disqualify the offending official from any reviewing authority duties. United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 553);
Dismiss the case with prejudice.
- United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004). CAAF upholds military judge’s decision to dismiss case with prejudice due to witness intimidation.
- Dismissal should be the last resort. “If and only if the trial judge finds that command influence exists . . . and finds, further, that there is no way to prevent it from adversely affecting the findings or sentence beyond a reasonable doubt should the case be dismissed.” United States v. Jones, 30 M.J. 849, 854 (N.M.C.M.R. 1990).
If a commander has been coerced into preferring charges that he does not believe are true, the charges are treated as unsigned and unsworn. United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994).
Military judges: Remember to complete the Biagase analysis
United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010). The military judge must follow up on the remedies and put it on the record that the remedies were fully implemented. Complete the Biagase analysis by saying what was done and that now the UCI that was found to exist will not prejudice the case beyond a reasonable doubt. If the military judge finds UCI but then does not complete the analysis, then the presumption still stands that the UCI will affect the proceeding. The record needs to reflect that the government has met its burden.