Appellate Consideration of Matters Outside the Record of Trial

• Author: By Captain Edward S. Adamkeuicz, Jr.
• Pages: 01

This arttole analwes the pnneiples governing the conaider-otion of matters outside the record of trial during rwiew of the findings ond sentence of a court-martial by the convening authority, boards of review, and Court of Military Appeals under the Unifom Code of Military Justice. In addition, related procedural problems are aiso ezamined.

I. INTRODUCTION

Under the Uniform Code of Military Justiee,l after every trial by Court-martial, a record of trial is prepared and forwarded to the convening authority for initial review and action.? Thereafter, records of general court-martial and special court-martial in which a bad conduct discharge was approved, are forwarded for further review to the Judge Advocate General of the armed force of which the accused is a member.g The Judge Advocate General then refers the record of trial in certain cases to B board of review.' Finally, after a board of review has acted, three types of cases mag be further reviewed by the Court of Military appeal^.^

It is the purpose of this article generally to discuss the principles governing the consideration of matters outside the record

* This article was adapted fiam a thesis presented to The Judge Advocate General's Sehoai, US Army, Chariottenwile, Virginia, while the author was a member of the Thirteenth Career Course. The opinions and coneiu8mns presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General's School or any other govern-mental agency.

**JAGC, U.S. Army: Instructor, Military Justice, The Judge Advmate General's School; LL.B., 1967, De Paul University, College of Law: Member of the Barn of the State of Illinma, the United States Court of Appeals, and the Umtod States Supreme Court.

Hereinafter referred to as the Code or UCMJ and cited sa UCMJ apt.

2 UCMJ art. 60.aUCMJ art. 66(a), (b).*See UCMJ art. 66. See also Part 1V. A,, -%/To, for a dmeusron of the

E See UCMJ art. 67. See also Part 1V. B., infra, far B dineunnion of the types of eases rewered by a board af rewew.

three types of cases reviewed by the Court of Military Appeals.

of trial in review of courts-martial by the convening authority, boards of review, and Court of Military Appeals under the Unt. form Code of Milttaq Justice,* and the procedural problems arising in connection therewith, a process one judge has called a "muddled appellate procedure," . often resulting in a "battle of affidavits." Emphasis will be placed on the evolution of the treatment of matters outside the record in appellate review with respect to a question of jurisdiction, sanity af the accused. judicial notice, petition for a new trial and such other matters as are authorized in the military judicial system, with a comparison of judicial treatment in each of these areas. No effort will be made toward an analysis of the substantive law in these areas nor of the scope of appellate review in general. Congressional grant of power over certain sentences to the President and Department Secretaries is not in issue, and hence will not be considered.8

11. THE RECORD OF TRIAL

A. GENERAL

Before beginning a discussion of the matters outside the record which may be considered on review, it is appropriate to consider what constitutes the record of trial, how the record may be cor-rected, and when matters not appearing in the trial transcript may be determined to be part of the "proceedings" subject to review.

The Unzforrn Code of Mtlttary Jwtiee requires that each general and special court-martial keep a separate record of the proceedings of each ease tried before it.'" The general court-martial recard must contain a verbatim transcript of all proceedings inopen session and any consultation between the court and law officer in closed session with respect to the farm of the findings." A special court-martial may not adjudge a bad-conduct discharge

For the histarleal background of courts-martmi review prior to the Code, see Frarcher, Appellate Rrairw ~n Amencan Yilitond Law, 14 Mo. L. REI. 15 (19491

7 Lather, J., dissenting in United States V. Johnson, E U.S.C.M.A. 173, 178. 23 C.41.R. 347, 402 (1951).

$E.#,,

United State8 V. Strahan, 14 U.S.C.M.A. 41, 42, 33 C.M.R. 253, 254 (19631 ; United Starer Y Waitera, 4 U S.C.M.A. 317, 626, 16 C M.R. 191, 200 (19541,

0 See UCMJ arts. 71, 74.

1oSee UCMJ art. %(a), (bl.

11 UCMJ art. 39; MAXUAL

FOR COURTE-MARTIAL, CwrrEo STATES, 1911, para. EZb(1) [hereinafter referred to 88 the Manual or MCM, 1951, and clted ar MCM, 1951, para. .... I.

2 *GO b56m

MATTERS OUTSIDE TRIAL RECORD

unless a "complete record" of the proceedings and testimony has been made.'? Minimal standards will be met when 'I. . . the transcript is sufficiently complete to present all material evidence bearing on all issues. , , ." I' The allied papers required to accompany the trial transcript are described in the Manual."

A properly authenticated record of trial imports absolute verity on appeal and may not be challenged except on the ground of fraud.'' However, if the record ia deficient in not containing essential trial proceedings Is or indicates that an unauthorized private communication between court-martial personnel has taken place," the doctrine of presumptive prejudice is applied and the burden is on the Government to overcome that presumption by clear and convincing evidence." This is so because the accused is being deprived of the right to have reviewing authorities pass an the legal correctness of the unrecorded matter considered by the court-martial. In the absence of Some reliable showing concerning what occurred at the unauthorized private discussion. the prejudice presumed to arise therefrom will result in reversible error.'*

When an unauthorized communication or conference takes place, the proper corrective action at the trial level is to make a full and complete disclosure in open court so that the matter will beUCMJ art. 19. MCM, 1951, PPI*. 830, interprets thin to mean P "ver-batim transenptl' of the proceedings. This more atringent requirement was upheld ~n United States Y. Whitman, 3 U.S.C.M.A. 179, 11 C.M.R. 179 (1953). Army regulations have effectively precluded the ~mposition of a had emduet discharge by special eowt8-martm1 by limiting the appointment of reporters to those essea in whieh the Seeretary of the Army has authorisd such action m advance. Army Reg. Na. 17-12, para la (15 Oet. 1965).

"United Statesv. Nelaon, 3 U.S.C.M.A. 482, 486, 13 C.M.R. 38, 42 (1953).IsSee MCM, 1951, para. 82b(5), app, 9e. Documents should not he in.eluded in a record of tyid unle.8 they are competent and relevant to the issues involved. United States Y. Shatter, 12 U.S.C.M.A. 283, 30 C.M.R. 283 11(161\,~.

~,>'United States v. Albright, 9 U.S.C.M.A. 628, 26 C.M.R. 408 (196S) i United States Y. Galloway, 2 U.S.C.M.A. 433, 9 C.M.R. 63 (1953). The burden of prwf to overcome thi. presumption 18 an the challenger. United Statea V. Tabita. 3 U.S.C.M.A. 267, 12 C.M.R. 23 (1953).

"United States V. Lowry, 4 U.S.C.M.A. 448, 16 C.M.R. 22 (1954)."United States Y. Adamiak, 4 U.S.C.M.A. 412, 15 C.M.R. 412 (1954).Unrecorded communications between court-martial personnel are B part of the "proceedings" although not reflected m the transcript. United States V.

Waltem, 4 U.S.C.M.A. 617, 16 C.M.R. 191 (1954).

21 United States Y. Adammk, mpro note 17; e/. United States \.. Caidweil, 11 U.S.C.M.A. 257,29 C.M.R.73 (1960).

IsUnited States V. Smith, 12 U.S.C.M.A. 127, 30 C.M.R. 127 (1961).

*u1 a1118 3

come a part of the record and may be reviewed for preJudxe.:a If the issue 1s raised piomptly after trial, a certificate of correction. proceedings in revision, or an appropriate form of investigation should be used by the convening authority to determine what took place and its prejudicial effect, if any. The real grobiem presented IS how such a deficiency in the record, unknown until after the record has left the control of the convening a"-thority, can be corrected and preserved ior consideration on appellate review

B. CORRECTIOV OF THE RECORD

initials whatever changes are necessary to make the record show the true proceedinps.jl Trial counsel then permits defense counsel to examine the record and a natation to this effect is made on the page bearing the authentication of the record." If the trial c~unsel and defense Counsel do not concur in any change. the matter should be brought to the attention of the persons who authenticate the record of trial: The latter may change and initial the record to make it show the true iiroceedmgs at any time befoie the record is forwarded to the convening authority." The use of this informal type of correction procedure is not limited to minor error or changes in the record. When the initlal transcript omits a part of the graceedings, the presumption oi regularity which attends proper authentication will support the insertion o! additional pages in the record of trial to correct the defect sa

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taken ylaee uithout relatmg

United States v Bruce, 12

I m e United States V. Erb,

an appe!late bnri IUCIIJ art 38(c)j, OF reek B formal certificate of correction (NCN 383, Daily, 18 C.MR. 428 (1955))

MCII. 1951. para 82r. .4 eeneral court-mattla1 record IS authenticated by rhe signatures of the president and law officer. UChIJ art %(a). A ~peeial Couif-maitla! record is authenficared by the ~~gnaiuresof the presl- dent and the Lna! eaunsel. MC31. 1951, para. 83c.

'I

United States $ Payne. 12 U.s.C K.4. 455, 81 C M R. 41 (1961)

4 A00 GSSS

MATTERS OUTSIDE TRIAL RECORD

2. Certificate of Comrctian.

When a record of trial upon review is found to be incomplete or defective in some material respect, the record may be returned to the president of the court for a certificate ai correction to make the record correspond to what actually accursed at the trial.2b A certificate af correction may be filed at any time before appellate review is completed.?- Such certificate is normally used to show an event or occurrence that took place at...