United States v. Matthews , 2009 CAAF LEXIS 813 ( 2009 )


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  •                           UNITED STATES, Appellee
    v.
    Christopher J. MATTHEWS, Specialist
    U.S. Army, Appellant
    No. 08-0613
    Crim. App. No. 20030404
    United States Court of Appeals for the Armed Forces
    Argued April 14, 2009
    Decided July 23, 2009
    BAKER, J., delivered the opinion of the Court, in which EFFRON,
    C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
    Counsel
    For Appellant: Earle Partington, Esq. (argued); Captain Melissa
    Goforth Koenig (on brief); Major Bradley M. Voorhees, Captain
    Teresa Lynn Raymond, and Captain William Jeremy Stephens.
    For Appellee: Captain Elizabeth A. Walker (argued); Colonel
    Denise R. Lind, Lieutenant Colonel Francis C. Kiley, and Major
    Christopher B. Burgess (on brief); Major Larry W. Downend.
    Military Judge:    Theodore E. Dixon
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Matthews, No. 08-0613/AR
    Judge BAKER delivered the opinion of the Court.
    Appellant entered mixed pleas before a military judge
    sitting alone as a general court-martial.    He was convicted of
    one specification of assault upon a noncommissioned officer with
    intent to cause grievous bodily harm, in violation of Article
    128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928
    (2000), and two specifications of wrongfully using cocaine, in
    violation of Article 112a, UCMJ, 10 U.S.C. § 912a (2000).    The
    military judge adjudged, and the convening authority approved, a
    sentence consisting of a bad-conduct discharge, confinement for
    eleven months, reduction to the grade of E-1, and forfeiture of
    all pay and allowances.   On initial review, the United States
    Army Court of Criminal Appeals (CCA) ordered an evidentiary
    hearing pursuant to United States v. DuBay, 
    17 C.M.A. 147
    , 
    37 C.M.R. 411
     (1967) (DuBay hearing).    United States v. Matthews,
    No. ARMY 20030404, slip op. at 6-7 (A. Ct. Crim. App. July 14,
    2006) (Matthews Order).   Following the DuBay hearing, the CCA
    affirmed the findings and sentence.   United States v. Matthews,
    
    66 M.J. 645
    , 653 (A. Ct. Crim. App. 2008).
    The issue granted asks:
    WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
    APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES
    NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE
    FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DUBAY HEARING
    AS TO HIS DELIBERATIVE PROCESS.
    2
    United States v. Matthews, No. 08-0613/AR
    The issue implicates not only the meaning of Military Rule of
    Evidence (M.R.E.) 509, but also the broader question of when, if
    at all, it is appropriate for military judges to testify
    regarding their deliberations.    After a review of M.R.E. 509,
    and consistent with M.R.E. 101 and federal common law, we
    conclude that with limited exception, not applicable here, the
    deliberative processes and reasoning of courts-martial military
    judges are protected from post-trial inquiry.    The CCA therefore
    should not have considered the trial military judge’s DuBay
    hearing testimony in this case to the extent it revealed his
    deliberative process.    We remand this case to the CCA for
    reconsideration of the DuBay record in a manner consistent with
    this opinion.
    BACKGROUND
    The charges against Appellant originate from events that
    transpired at Appellant’s on-post home, where he lived with his
    wife.    On the day in question, Sergeant (SGT) Brian Freeman, an
    acquaintance of Appellant and Mrs. Matthews, visited the
    Matthews’ home.    Mrs. Matthews informed SGT Freeman that
    Appellant wished to speak with SGT Freeman inside the house.
    Upon entering the house, SGT Freeman noticed
    there were two other men in the kitchen; both were
    wearing battle dress uniforms without name tags.
    Although he did not know their identities at the time,
    they were [then] [Staff Sergeant] SSG James Gibson and
    Private First Class (PFC) Pedro Lozada III. Appellant
    began questioning SGT Freeman in the living room about
    3
    United States v. Matthews, No. 08-0613/AR
    whether SGT Freeman was facilitating [Appellant’s
    wife’s] affair with another soldier. . . . [SGT]
    Freeman denied knowledge of an affair.
    Appellant then pulled out a handgun from under
    the couch in the living room and inserted a loaded
    magazine. As SGT Freeman became frightened and turned
    to run through the kitchen, SSG Gibson and PFC Lozada
    grabbed SGT Freeman and pushed him back into the
    living room. Appellant then pistol whipped SGT
    Freeman from behind, and SGT Freeman heard what he
    believed to be a gunshot. Two of [A]ppellant’s
    neighbors also heard a gunshot. . . . While SGT
    Freeman was on the floor with his head bleeding,
    [A]ppellant held the handgun to his head. With PFC
    Lozada and SSG Gibson beside him, [A]ppellant
    continued to threaten SGT Freeman and demanded he tell
    him what he knew of [his wife’s] infidelities.
    Hearing the sirens of approaching military police
    (MP), [A]ppellant told SGT Freeman to hide in the
    bathroom. [SGT] Freeman did so for a few moments but
    fled the house at the first opportunity.
    Matthews, 66 M.J. at 646 (footnote omitted and first alteration
    in original).
    I.   Trial
    At trial, Appellant called PVT Gibson as a witness.1   As the
    CCA explained, PVT Gibson’s invocation of his right against
    self-incrimination in response to questions by trial counsel at
    the court-martial formed the basis for Appellant’s appeal to the
    lower court:
    During cross-examination, trial counsel asked PVT
    Gibson a series of questions, which could have
    elicited potentially inculpatory and self-
    1
    “Private James Gibson was a staff sergeant (SSG) at the time
    the offenses were committed. Following UCMJ action prior to
    [A]ppellant’s trial, [Gibson] was reduced in rank from staff
    sergeant to private.” Matthews, 66 M.J. at 646 n.1.
    4
    United States v. Matthews, No. 08-0613/AR
    incriminating responses. The questions pertained to
    PVT Gibson’s previous misconduct [and] were unrelated
    to the offenses underlying [A]ppellant’s trial. [PVT]
    Gibson refused to answer these questions and invoked
    his Fifth Amendment privilege against self-
    incrimination thirteen times by stating, “I'll take
    the Fifth Amendment.”
    Based upon PVT Gibson’s invocation, trial counsel
    requested to have him excused and his testimony
    stricken from the record. Although trial counsel
    asserted that she could not conduct a meaningful
    cross-examination of PVT Gibson, the military judge
    summarily denied the request. Despite PVT Gibson’s
    repeated invocation of his Fifth Amendment privilege
    -- matched by as many objections from civilian defense
    counsel -- the military judge allowed trial counsel to
    continue with her line of questioning.
    The military judge also permitted trial counsel
    to comment on PVT Gibson’s invocation of his Fifth
    Amendment privilege against self-incrimination during
    her rebuttal argument on findings.
    . . . .
    Although civilian defense counsel objected to
    trial counsel’s comments, the military judge
    subsequently ruled that such comments were permissible
    based on the “interests of justice” exception to Mil.
    R. Evid. 512(a)(2).
    Matthews, 66 M.J. at 647 (footnote omitted).
    After the military judge announced his findings on the
    record, he made the following additional comments:
    MJ: For purposes of any appellate review of this
    case for factual sufficiency, the court had the
    opportunity to evaluate the credibility of each
    witness and considered each witness’s ability to
    observe and accurately remember, sincerity,
    conduct in court, friendships, prejudices, and
    character for truthfulness. The court also
    considered the extent to which each witness was
    supported or contradicted by other evidence, the
    5
    United States v. Matthews, No. 08-0613/AR
    relationship each witness had with the other
    side, and how each witness might be affected by
    the verdict.
    In weighing a discrepancy by a witness and
    between witnesses, the court considered whether
    it resulted from an innocent mistake or a
    deliberate lie.
    After taking all these matters into account, the
    court then considered the probability of each
    witness’s testimony, and the inclination of each
    witness to tell the truth. Based on the
    foregoing, the court finds beyond a reasonable
    doubt that [PVT] Lozada, [PVT] Gibson, and Mrs.
    Matthews were untruthful in their testimony. The
    court further finds that these witnesses had
    every opportunity to, and did, collaborate to
    falsely testify in this case, motivated by
    obvious individual self-interest.
    Id. at 647-48.
    II.   United States Army Court of Criminal Appeals Order
    Appellant thereafter appealed to the CCA, asserting that
    “the military judge erred by allowing trial counsel to comment
    upon PVT Gibson’s invocation of the right against self-
    incrimination, and therefore, improperly drew an adverse
    inference from those comments.”    Matthews Order, No. ARMY
    20030404, slip op. at 3.    In addition, Appellant submitted
    affidavits from civilian defense counsel, trial defense counsel,
    and Appellant’s father, each asserting that the military judge
    stated reasons off the record for why he did not believe PVT
    Gibson.   Id.    The Government countered by submitting an
    affidavit from trial counsel, who asserted that the military
    6
    United States v. Matthews, No. 08-0613/AR
    judge “‘never made the comments that [A]ppellant alleges.’”      Id.
    at 4.
    On July 14, 2006, the CCA ordered a DuBay hearing to
    determine, in relevant part:
    a. Whether the military judge properly applied Mil.
    R. Evid. 512(a)(2) by allowing trial counsel to
    comment on PVT Gibson’s invocation of the right
    against self-incrimination in her rebuttal argument on
    findings.
    b. What, if anything, did the military judge say
    concerning PVT Gibson’s credibility in light of PVT
    Gibson invoking the Fifth Amendment right against
    self-incrimination?
    Id. at 6.    The CCA also ordered:
    3. That the DuBay military judge . . . permit the
    presentation of witnesses and evidence, make rulings
    as appropriate, and enter findings of fact and
    conclusions of law concerning whether the military
    judge: (1) made any comment regarding PVT Gibson’s
    invocation of his Fifth Amendment right against self-
    incrimination, and/or (2) drew any adverse inference
    that the invocation made PVT Gibson less credible[.]
    Id. at 7.
    III.    DuBay Hearing
    The Government called the military judge who presided over
    the original court-martial to testify at the DuBay hearing.
    Neither party nor the DuBay judge nor the trial judge objected
    to this testimony.      Both parties and the DuBay judge posed
    questions to the trial judge.     The following excerpts are
    7
    United States v. Matthews, No. 08-0613/AR
    representative portions of the trial judge’s testimony at the
    DuBay hearing:2
    [Trial counsel (TC)]: Now how would you characterize
    the interests of justice here?
    [Trial military judge (TMJ)]: . . . I was very
    concerned about the potential prejudice to Matthews if
    I were to make rulings different than what I had made.
    I wanted the defense to be able to present their case
    in whatever fashion they believed that they should
    present their case. However, I am a firm believer
    that justice works both ways. The government is
    entitled to a fair trial as well as the accused.
    Under these conditions, with the sequence of events,
    the government was entitled to make that legal
    argument . . . . I decided that she was entitled,
    [trial counsel] that is, to make that argument,
    whether I drew the inference or not, it was an
    arguable inference that the court was permitted to
    draw.
    . . . .
    [TC]: So you didn’t state at that time, that you
    would draw a negative inference?
    [TMJ]: Although I believe then, and I believe now,
    that the inference could be drawn by the court under
    these circumstances, I didn’t make any comment that I
    was going to draw an inference. That is something
    that judges just don’t do. So I would not have told
    them that I am actually going to draw the inference.
    That was before findings had been announced.
    . . . .
    [Defense counsel (DC)]: And with knowing that there
    were some credibility issues related to Private
    2
    The excerpts from the trial military judge’s DuBay testimony
    and the DuBay military judge’s findings of fact and conclusions
    of law cited in the Court’s opinion are illustrative of the type
    of testimony elicited and the effect such testimony had on the
    DuBay military judge’s findings of fact and conclusions of law.
    They are not exhaustive.
    8
    United States v. Matthews, No. 08-0613/AR
    Gibson, did that in any way impact how you believed
    his credibility was when he got on the stand?
    [TMJ]: No. His testimony, as I stated earlier, was
    in direct opposition to other testimony, other
    evidence presented to me. It was so far in contrast,
    that I didn’t believe him during his direct
    examination. In other words, what he testified to,
    that was being elicited by the defense, was not
    credible in and of itself.
    . . . .
    [DuBay military judge]: Okay. So by invoking the
    exception of M.R.E. 512 in the interest of justice,
    how would you describe the interest of justice that
    you were seeking to pursue?
    [TMJ]: Because all of my rulings and all of my
    decisions as it related to how to proceed with
    [Private] Gibson’s testimony, in light of what had
    occurred, were very defense oriented, very defense
    favorable, I wanted to ensure that Specialist Matthews
    was able to present the evidence as his attorneys
    wanted to present [it]. So, I made my rulings
    consistent with that approach to this particular
    issue. All of those rulings were designed to allow
    [Private] Gibson’s direct examination. Because I
    didn’t want to delay the trial for an immunity order.
    I didn’t want to give the government the advantage of
    me ordering [Private] Gibson to testify,
    notwithstanding the fact that he invoked, which, to be
    quite honest, I had not researched that aspect of the
    issue and neither side had briefed the issue of
    whether a court-ordered response by the witness would
    provide in any type of immunity. So I elected not to
    use that option as well. So, all of the options that
    I chose, either to elect or not elect, were designed
    to ensure that Specialist Matthews was able to present
    the evidence that he wanted to present. When it came
    to the argument of counsel, however, that is where I
    evened the playing field, so to speak. It was a
    legitimate, in my mind, a legitimate legal argument
    that she should have been able to make, whether or not
    the court could draw the inference or whether the law
    would allow them to draw the inference, it was a
    comment which the rules specifically address, that I
    9
    United States v. Matthews, No. 08-0613/AR
    believe that the interest of justice, under the
    circumstances, would allow. It has sort of evened the
    playing field based on the circumstances in this case,
    so.
    . . . .
    [DC]: Sir, do you think that the government was
    allowed to unfairly benefit from a poorly drafted
    immunity order, by asking questions that they know
    would not be covered by that immunity order?
    [TMJ]: I believe the government’s presentation of
    their cross-examination of Gibson was severely
    hampered, because they were not permitted to get
    responses that would otherwise directly go to
    [Private] Gibson’s credibility. That was the result
    of the poorly drafted immunity order. As this was a
    judge alone case, there was no specific danger of
    unfair prejudice to the accused of the government’s
    rebuttal argument. Since I did not draw the inference
    requested, there was no prejudice to the accused,
    Specialist Matthews, as it relates to that argument.
    So, did the government unfairly benefit? No. The end
    result is that they did not unfairly benefit by my
    rulings.
    Based on the testimony presented at the DuBay hearing, the
    DuBay military judge made the following findings of fact:
    18. At the fact-finding hearing, the Military Judge
    for the first time explained his rationale for
    invoking MRE 512’s interest-of-justice exception. His
    intent was to ensure a fair trial for both sides. He
    was primarily concerned that appellant not be deprived
    of the benefit of Private Gibson’s material, favorable
    evidence because government attorneys had drafted an
    in-artful grant of immunity for Private Gibson and had
    not co-ordinated that grant of immunity with the U.S.
    Attorney prior to trial. Accordingly, he decided not
    to invoke the remedy of striking Private Gibson’s
    direct testimony, favorable to appellant, upon
    invocation of the privilege upon trial counsel cross-
    examination because he did not want the government to
    benefit from its own errors. Because he had not
    invoked the remedy of striking the direct testimony,
    10
    United States v. Matthews, No. 08-0613/AR
    he allowed assistant trial counsel to argue the
    invocation of the privilege in the interest of
    justice. It was a lesser remedy than striking the
    direct testimony, thereby ensuring both that appellant
    received the benefit of Private Gibson’s testimony and
    that the government had an opportunity to be heard as
    well regarding the matter of credibility. In his
    determination that the interests of justice indicated
    consideration of assistant trial counsel’s argument
    regarding Private Gibson’s invocation of his
    privilege, the Military Judge was aware that the
    privilege invocation deprived the government of
    significant impeachment evidence regarding Private
    Gibson’s credibility.
    19. When rendering findings, the Military Judge
    specifically found that Private Lozada, Private
    Gibson, and Mrs. Matthews were untruthful in their
    testimony and that they had collaborated in their
    false testimony. He determined this from the sharp
    contrast in the testimony between government witnesses
    whom [sic] he determined were credible and these
    defense witnesses, and the way in which these defense
    witnesses testified consistent with each other
    regarding significant matters but differed as to less
    significant matters. . . . The Military Judge had
    determined the credibility of these three defense
    witnesses prior to assistant trial counsel’s cross-
    examination of Private Gibson and prior to assistant
    trial counsel’s comment in rebuttal on Private
    Gibson’s invocation of his privilege.
    20. When rendering findings, the Military Judge
    considered the assistant trial counsel’s rebuttal
    argument to which civilian defense counsel objected
    regarding Private Gibson’s invocation of his
    privilege. He thought about it while deliberating on
    findings. He considered Private Gibson’s invocation
    of the privilege as a matter affecting Private
    Gibson’s credibility. He drew an adverse inference
    that the invocation made Private Gibson less credible.
    He considered the invocation of the privilege as a
    matter affecting Private Gibson’s credibility in the
    interest of justice as an alternative to the more
    drastic, authorized remedy of striking and not
    considering at all Private Gibson’s defense-favorable,
    material direct testimony. He, however, gave the
    11
    United States v. Matthews, No. 08-0613/AR
    invocation of the privilege no weight because other
    evidence persuaded him that Private Gibson, as well as
    Private Lozada and Mrs. Matthews, had collaborated
    their false testimony.
    The DuBay military judge then made the following relevant
    conclusions of law based on his findings of fact:
    1. The Military Judge did not abuse his discretion by
    allowing assistant trial counsel to comment on Private
    Gibson’s invocation of the privilege against self-
    incrimination in her rebuttal argument on findings.
    Rather, the Military Judge applied the correct rule of
    evidence, MRE 512(a)(2). That rule provides that
    normally comment on claim of a privilege [sic] is not
    allowed, but here the Military Judge determined that
    the circumstances were not normal. He considered the
    government’s error in the in-artful drafting of
    Private Gibson’s grant of immunity, as well as the
    lack of co-ordination with the U.S. attorney. His
    primary concern was not to invoke the remedy of MRE
    301(f)(2) and deprive appellant of material, favorable
    evidence by striking Private Gibson’s direct
    testimony. Rather than strike the direct testimony,
    he invoked a less drastic remedy of allowing assistant
    trial counsel to comment on the claim of privilege and
    considered it in rendering findings, in order to
    ensure that he considered Private Gibson’s testimony
    offered by appellant, as well as to ensure that the
    government had an opportunity to be heard, cognizant
    that Private Gibson’s privilege invocation deprived
    the government of significant impeachment evidence.
    Therefore, he did not abuse his discretion by invoking
    the Rule’s interest-of-justice exception and did not
    improperly apply the rule of evidence. He applied the
    correct rule and had an adequate factual basis for his
    application of that rule’s exception.
    . . . .
    3. The Military Judge considered assistant trial
    counsel’s argument regarding Private Gibson’s
    invocation of the privilege; considered the invocation
    of the privilege when rendering findings; drew an
    adverse inference that the invocation made Private
    Gibson less credible; told the parties on the record
    12
    United States v. Matthews, No. 08-0613/AR
    that he had invoked MRE 512’s interest-of-justice
    exception when considering the invocation of the
    privilege when rendering findings; and, made an ex
    parte off-the-record comment to civilian defense
    counsel and military defense counsel that he had
    considered Private Gibson’s invocation of the
    privilege in determining Private Gibson’s credibility.
    4. The Military Judge gave no weight to Private
    Gibson’s invocation of the privilege in determining
    Private Gibson’s credibility and rendering findings. .
    . .
    IV.   United States Army Court of Criminal Appeals Opinion on the
    Merits
    Following the DuBay hearing, Appellant submitted a
    supplemental brief to the CCA alleging that the DuBay military
    judge erred, first, in permitting the trial military judge to
    testify about his deliberative process, and second, in finding
    that the trial military judge properly permitted assistant trial
    counsel to comment on PVT Gibson’s invocation of his privilege
    against self-incrimination.   With the benefit of the record and
    the DuBay hearing, the CCA ultimately found that:
    the military judge erred when applying Mil. R. Evid.
    512, rather than the more specific and therefore
    controlling rule, Mil. R. Evid. 301. Consequently, he
    erred when he permitted trial counsel to comment
    during rebuttal argument on PVT Gibson’s invocation of
    his Fifth Amendment privilege against self-
    incrimination. Lastly, the military judge erred when
    he ruled on defense counsel’s objection to the
    military judge drawing an adverse inference from PVT
    Gibson’s invocation of his Fifth Amendment privilege
    against self-incrimination.
    13
    United States v. Matthews, No. 08-0613/AR
    Matthews, 66 M.J. at 651-53.   The CCA then applied a
    constitutional error analysis to determine that the trial
    military judge’s errors were harmless beyond a reasonable doubt.
    Id. at 653.   In conducting this analysis, the CCA observed that
    “the [trial] military judge testified [at the DuBay hearing]
    concerning his analysis of PVT Gibson’s credibility as a
    witness.”   Id. at 652.   The CCA further noted that “[w]hile the
    [trial] military judge acknowledged he drew an adverse
    inference, he reiterated that he gave no weight to this
    inference in his deliberations.”      Id.
    The CCA addressed Appellant’s allegation that the DuBay
    military judge erred in permitting the trial military judge to
    testify about his deliberative process at the DuBay hearing in
    the following footnote:
    Appellate defense counsel, in supplemental
    pleadings, assert[s] the military judge violated the
    deliberative process privilege, as explained in Mil.
    R. Evid. 509 and Mil. R. Evid. 606(b), by testifying
    about his thought process in ruling on the Mil. R.
    Evid. 512 objection. Military Rules of Evidence 509
    and 606(b) describe the prohibitions which exist to
    keep jury members from disclosing their deliberative
    process, through testimony or affidavits, not judges.
    Appellant provides no case law to support the
    proposition that these evidentiary rules apply to a
    military judge’s deliberative process. In fact, in
    United States v. McNutt, 
    62 M.J. 16
    , 20 (C.A.A.F.
    2005), our superior court held Mil. R. Evid. 606(b)
    “applies to court members only, and thus, does not
    apply to protect the statement[s] of the military
    judge. . . .” Additionally, the court specifically
    addressed the present situation, recognizing “there
    [will be] certain extraordinary situations in which a
    14
    United States v. Matthews, No. 08-0613/AR
    judge may be called upon to explain his verdict or
    rulings in subsequent proceedings.” Id. at 21. In
    the instant case, such a circumstance arose and,
    acting under this contingency, we ordered the DuBay
    hearing.
    Matthews, 66 M.J. at 652 n.13 (alteration in original).
    ANALYSIS
    We review the CCA’s conclusion that M.R.E. 509 is
    inapplicable to military judges de novo.    See United States v.
    Flores, 
    64 M.J. 451
    , 454 (C.A.A.F. 2007); United States v. Best,
    
    61 M.J. 376
    , 381 (C.A.A.F. 2005); United States v. McCollum, 
    58 M.J. 323
    , 340 (C.A.A.F. 2003).3    In addressing the granted issue,
    we look first to the text of M.R.E. 509, and in particular, the
    use of the terms “courts” and “privilege.”    In light of M.R.E.
    509’s incorporation of federal evidentiary law, as well as the
    varied ways in which the term “privilege” might be read, we
    ultimately turn to federal common law, consistent with M.R.E.
    101, to answer the question presented.    Indeed, for the reasons
    3
    This case presents a situation similar to that in Best, 
    61 M.J. 376
    . In that case, the lower court affirmed the findings and
    sentence after considering the findings of a DuBay hearing. Id.
    at 377. We then reviewed de novo the lower court’s post-DuBay
    interpretation of R.C.M. 706. Id. at 381. As in Best, plain
    error analysis is inapplicable to what the DuBay military judge
    may or may not have considered in this case, notwithstanding
    that neither party objected to the trial military judge’s DuBay
    testimony. The third prong of the test for plain error focuses
    on the outcome or judgment at the court-martial. See United
    States v. Schlamer, 
    52 M.J. 80
    , 85-86 (C.A.A.F. 1999).
    Moreover, as a DuBay hearing has no outcome per se, we review
    the CCA’s conclusion on a question of law de novo and remand to
    the lower court for reconsideration of the evidentiary issues
    that might have affected its ultimate appellate decision.
    15
    United States v. Matthews, No. 08-0613/AR
    explained below, it would not be possible to interpret M.R.E.
    509 without reliance on federal common law and its purposes.
    I.   Applicability of M.R.E. 509 to Military Judges
    M.R.E. 509 is included in the “Privileges” section of the
    Military Rules of Evidence and is entitled “Deliberations of
    courts and juries.”   M.R.E. 509 provides that:
    Except as provided in Mil. R. Evid. 606, the
    deliberations of courts and grand and petit juries are
    privileged to the extent that such matters are
    privileged in trial of criminal cases in the United
    States district courts, but the results of the
    deliberations are not privileged.
    M.R.E. 509 “is taken from 1969 Manual Para. 151 but has been
    modified to ensure conformity with Rule 606(b) which deals
    specifically with disclosure of deliberations in certain cases.”
    Manual for Courts-Martial, United States, Analysis of the
    Military Rules of Evidence app. 22 at A22-44 (2008 ed.) (MCM).
    Paragraph 151(b) of both the 1951 and 1969 MCM provided
    that “[t]he deliberations of courts and of grand or petit juries
    are privileged, but the results of their deliberations are not
    privileged.”   The reference to “courts and grand or petit
    juries” in M.R.E. 509 has not changed substantively since the
    1951 MCM.4
    4
    The only difference between the 1951 MCM and more modern
    versions of the MCM is the use of “and” versus “or.” In 1951,
    the MCM stated “grand or petit juries,” (emphasis added), while
    the 2008 MCM refers to “grand and petit juries.” (emphasis
    added).
    16
    United States v. Matthews, No. 08-0613/AR
    The parties disagree on the meaning of “courts,” and thus
    whether M.R.E. 509 applies to military judges.   Appellant argues
    that the plain meaning of “courts” includes a military judge
    sitting alone.    Thus, according to Appellant, M.R.E. 509
    prohibits a military judge from testifying about his or her
    deliberative process.   On the other hand, the Government argues
    that the history of the MCM demonstrates that “courts” does not
    include military judges.   The Government contends that the
    reference to “courts” in the 1951 MCM could not have referred to
    a military judge sitting in a judge alone court-martial because
    the position of military judge did not exist prior to 1968.
    “It is a well established rule that principles of statutory
    construction are used in construing the . . . Military Rules of
    Evidence . . . .”   United States v. Custis, 
    65 M.J. 366
    , 370
    (C.A.A.F. 2007).    “‘[W]hen the statute’s language is plain, the
    sole function of the courts -- at least where the disposition
    required by the text is not absurd -- is to enforce it according
    to its terms.’”    Id. (quoting Hartford Underwriters Ins. Co. v.
    Union Planters Bank, N.A., 
    530 U.S. 1
    , 6 (2000)) (alteration in
    original).   “In construing the language of a statute or rule, it
    is generally understood that the words should be given their
    common and approved usage.”   McCollum, 58 M.J. at 340 (citation
    and quotation marks omitted).
    17
    United States v. Matthews, No. 08-0613/AR
    Dictionaries from both today and the 1950s suggest that
    “court” is tantamount to “judge.”    According to the 1951 Fourth
    Edition of Black’s Law Dictionary, “[t]he words ‘court’ and
    ‘judge,’ or ‘judges,’ are frequently used in statutes as
    synonymous.”   Black’s Law Dictionary 425 (4th ed. 1951).     The
    1952 version of Webster’s defines “court” as, inter alia, “a
    judge or judges sitting for the hearing or trial of causes.
    . . . The judge or judges, as distinguished from the counsel or
    jury.”   Webster’s New Int’l Dictionary Unabridged 611 (2d ed.
    1952).   The modern-day Black’s Law Dictionary defines “court” as
    “1.   A governmental body consisting of one or more judges who
    sit to adjudicate disputes and administer justice . . . .     2.
    The judge or judges who sit on such governmental body . . . .”
    Black’s Law Dictionary 378 (8th ed. 2004).    Therefore, under the
    plain meaning of “courts,” M.R.E. 509 could be read to include a
    judge, which, in turn, evolved to incorporate a military judge.
    However, while the phrase “courts and grand and petit
    juries” has remained substantively constant over time, related
    sections of the MCM have changed, which may or may not alter the
    meaning of “courts.”   The 1951 MCM reference to “courts and
    grand and petit juries” may have referred to the deliberations
    of both the judge and juries in civilian courts, given that
    neither military judges nor grand or petit juries existed in the
    military justice system at that time.   However, in 1968, the
    18
    United States v. Matthews, No. 08-0613/AR
    Military Justice Act created the position of military judge and
    the judge alone court-martial.   Military Justice Act of 1968,
    Pub. L. No. 90-632, 70A Stat. 37 (codified as amended in
    scattered sections of 10 U.S.C.).     The President promulgated the
    Military Rules of Evidence in 1980, which expressly protects the
    deliberations of members in M.R.E. 606(b).    Exec. Order No.
    12,198, 45 Fed. Reg. 16,932 (Mar. 12, 1980).    What is less clear
    is whether, by restricting the application of M.R.E. 606(b) to
    only members, the drafters intended to preclude any protection
    over the deliberations of military judges.    See McNutt, 62 M.J.
    at 20 (concluding “that M.R.E. 606(b) applies to court members
    only”).   Or, alternatively, whether the drafters determined that
    the reference to “courts” in M.R.E. 509 was sufficient to
    accomplish that goal, negating the need to either include
    “courts” within M.R.E. 606(b) or amend M.R.E. 509.    There is no
    need to amend language when it already covers the intended
    result.   See Stone v. Immigration and Naturalization Serv., 
    514 U.S. 386
    , 397 (1995) (“When Congress acts to amend a statute, we
    presume it intends its amendment to have real and substantial
    effect.”).
    The canon of contextual construction that “counsels that a
    word gathers meaning from the words around it” also supports the
    conclusion that “courts” includes military judges.    Babbitt v.
    Sweet Home Chapter of Cmtys. for a Great Or., 
    515 U.S. 687
    , 702
    19
    United States v. Matthews, No. 08-0613/AR
    (1995) (citation and quotation marks omitted).   M.R.E. 509
    includes a reference to both “courts and grand and petit juries”
    and “United States district courts.”   The first reference in
    M.R.E. 509 is to “courts,” but the text later refers more
    specifically to “United States district courts.”   Thus, that
    initial reference to “courts” likely cannot mean only “United
    States district courts.”   Had the drafters intended the first
    reference to “courts” to mean civilian courts, they would not
    have distinguished between courts in general and “United States
    district courts” more specifically.    Separating courts from
    juries also suggests that “courts” does not equal juries in
    M.R.E. 509.5
    5
    M.R.E. 606(b) addresses if and when a court member may testify
    about the deliberations at the court-martial. The corollary
    rule regarding the competency of a military judge as a witness,
    M.R.E. 605, does not address inquiry into a military judge’s
    deliberations.
    Rule 605.   Competency of a military judge as witness
    (a) The military judge presiding at the court-martial
    may not testify in that court-martial as a witness.
    No objection need be made to preserve the point.
    (b) This rule does not preclude the military judge
    from placing on the record matters concerning
    docketing of the case.
    M.R.E. 605. Nevertheless, the application of M.R.E. 606 to only
    court members does not preclude M.R.E. 509 from applying to
    military judges. M.R.E. 606 limits M.R.E. 509 to the extent
    M.R.E. 509 protects the deliberations of court members; however,
    this limitation does not prevent or preclude M.R.E. 509 from
    applying to a military judge’s deliberations.
    20
    United States v. Matthews, No. 08-0613/AR
    Given the plain meaning of the word “courts,” it is
    reasonable to conclude that M.R.E. 509 includes military judges
    within its ambit.   However, while M.R.E. 509 reaches military
    judges, it is unclear whether M.R.E. 509 protects the
    deliberative process of military judges or, alternatively,
    whether it creates a privilege that shields such information but
    requires affirmative judicial invocation similar to that
    required by other privileges embodied in the Military Rules of
    Evidence.
    II.   A “Protection” or a “Privilege”
    There are at least two reasonable ways to interpret the
    term “privilege” in M.R.E. 509, in the absence of legislative
    history, controlling guidance in the MCM discussion or analysis,
    or case law.6   First, because the drafters included M.R.E. 509 in
    the Privileges section of the Military Rules of Evidence,
    alongside privileges such as the lawyer-client privilege, M.R.E.
    502, husband-wife privilege, M.R.E. 504, and the
    psychotherapist-patient privilege, M.R.E. 513, one might infer
    that “privilege” should be interpreted similarly to the way the
    term is used in the context of other privileges.   Under this
    reading, by using “privilege” to describe the limitation on
    disclosing the deliberative processes of military judges, M.R.E.
    6
    Of course, one reason that scant guidance exists is because the
    issue of judicial testimony rarely arises.
    21
    United States v. Matthews, No. 08-0613/AR
    509 would confer upon a person or an institutional entity an
    affirmative privilege against disclosure of certain information.
    That person or institution would hold the privilege, could
    assert the privilege, and could voluntarily waive such
    privilege.
    Second, and alternatively, because M.R.E. 509 defines the
    scope of the privilege as coterminous with that found in “trial
    of criminal cases in the United States district courts,” one
    might look to federal evidentiary law to determine the meaning
    of “privilege” in this specific context.    An examination of
    federal evidentiary law, however, reveals that the civilian
    federal courts recognize a general rule against review of a
    trial judge’s deliberative process, rather than a privilege over
    such information that can be invoked and waived, such as the
    privilege that exists in the context of the attorney-client
    relationship.   Fayerweather v. Ritch, 
    195 U.S. 276
    , 306-07
    (1904); Perkins v. LeCureux, 
    58 F.3d 214
    , 220 (6th Cir. 1995),
    superseded by statute on other grounds, Antiterrorism and
    Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
    Stat. 1214 (AEDPA); Washington v. Strickland, 
    693 F.2d 1243
    ,
    1263 (5th Cir. 1982), rev’d on other grounds, 
    466 U.S. 668
    (1984), superseded by statute on other grounds, AEDPA; United
    States v. Crouch, 
    566 F.2d 1311
    , 1316 (5th Cir. 1978), abrogated
    on other grounds by United States v. Singleterry, 
    683 F.2d 122
    22
    United States v. Matthews, No. 08-0613/AR
    (5th Cir. 1982); Morrison v. Kimmelman, 
    650 F. Supp. 801
    , 806
    (D.N.J. 1986), superseded by statute on other grounds, AEDPA.
    Thus, the deliberative process of a judge in civilian court is
    subject to protection rather than a claim of privilege in the
    traditional legal sense.
    In our view, both readings are plausible.   Therefore,
    consistent with M.R.E. 101, and the text of M.R.E. 509 itself,
    we look to the Federal Rules of Evidence and federal common law
    generally to interpret M.R.E. 509 and adopt the prevailing
    federal common law rule that the deliberative process of judges
    is protected from disclosure.7
    7
    “M.R.E. 101(b) instructs military courts to look to the federal
    rules and the common law for guidance on evidentiary issues
    where doing so is ‘not otherwise prescribed in [the] Manual . .
    . and insofar as practicable and not inconsistent with or
    contrary to the code or [the] Manual.’” McCollum, 58 M.J. at
    341 (quoting M.R.E. 101(b)) (alteration in original). M.R.E.
    101(b) further mandates that, when looking to such federal law,
    military courts should consider:
    (1) First, the rules of evidence generally recognized
    in the trial of criminal cases in the United States
    district courts; and
    (2) Second, when not inconsistent with subdivision
    (b)(1), the rules of evidence at common law.
    The Federal Rules of Evidence do not expressly protect the
    deliberative processes of judges or treat such information as
    privileged. See Fed. R. Evid. 501. However, federal common law
    does provide such a protection.
    23
    United States v. Matthews, No. 08-0613/AR
    III.   Federal Common Law
    An analysis of federal common law on the deliberative
    process of judges usually begins with Fayerweather, 
    195 U.S. 276
    .   In Fayerweather, the Supreme Court stated that “no
    testimony should be received except of open and tangible facts,”
    emphasizing the potential for a negative effect on the judicial
    system if such testimony were permitted:
    [T]he testimony of the trial judge, given six years
    after the case has been disposed of, in respect to the
    matters he considered and passed upon, was obviously
    incompetent. True, the reasoning of the court for the
    rule is not wholly applicable, for as the case was
    tried before a single judge there were not two or more
    minds coming by different processes to the same
    result. Nevertheless no testimony should be received
    except of open and tangible facts -- matters which are
    susceptible of evidence on both sides. A judgment is
    a solemn record. Parties have a right to rely upon
    it. It should not lightly be disturbed, and ought
    never to be overthrown or limited by the oral
    testimony of a judge or juror of what he had in mind
    at the time of the decision.
    Id. at 306-07.8
    8
    Later, when discussing the protection of administrative
    deliberative processes, the Supreme Court stated that:
    The proceeding before the Secretary [of Agriculture]
    has a quality resembling a judicial proceeding. Such
    an examination of a judge would be destructive of
    judicial responsibility. . . . Just as a judge cannot
    be subjected to such a scrutiny . . ., so the
    integrity of the administrative process must be
    equally respected.
    United States v. Morgan, 
    313 U.S. 409
    , 422 (1941) (citations and
    quotation marks omitted). We recognize that the deliberative
    processes of agencies are protected by a privilege in the
    traditional sense that agency officials hold and can waive,
    24
    United States v. Matthews, No. 08-0613/AR
    Based on the Fayerweather foundation, other courts have
    similarly limited the post-trial testimony of judges.
    [T]he overwhelming authority from the federal courts in
    this country, including the United States Supreme Court,
    makes it clear that a judge may not be compelled to testify
    concerning the mental processes used in formulating
    official judgments or the reasons that motivated him in the
    performance of his official duties.
    United States v. Roth, 
    332 F. Supp. 2d 565
    , 567-68 (S.D.N.Y.
    2004) (refusing to permit a party to subpoena, and thus compel,
    the judge to testify concerning his deliberative process); see
    also Crouch, 566 F.2d at 1316 (“A judge’s statement of his
    mental processes is absolutely unreviewable.”).    “[T]his
    [protection] must be construed and applied with the greatest
    care for fear that it be misused or abused.”   Standard Packaging
    Corp. v. Curwood, Inc., 
    365 F. Supp. 134
    , 135 (N.D. Ill. 1973)
    (analogizing the protection provided by the “mental processes”
    rule to a “testimonial ‘privilege’”).   While the case law is
    often inconsistent in its terminology, whether describing the
    limitation on deliberative process testimony as a privilege, a
    protection, inadmissible evidence, or some other
    characterization, the operation and application of the
    which differs from the manner in which federal courts have
    protected the deliberative processes of judges. However, while
    “[t]he inner workings of administrative decision making
    processes are almost never subject to discovery[,] . . . the
    inner workings of decision making by courts are kept in even
    greater confidence.” Goetz v. Crosson, 
    41 F.3d 800
    , 805 (2d
    Cir. 1994) (citations omitted).
    25
    United States v. Matthews, No. 08-0613/AR
    limitation is the same -- courts will not review the
    deliberative process of a judge.       Crouch, 566 F.2d at 1316.
    While the underlying principle holds firm, federal courts
    have stopped short of prohibiting judicial testimony entirely
    and have employed a “case-by-case” evaluation to delineate
    between protected and unprotected testimony.      Standard Packaging
    Corp., 365 F. Supp. at 135.   A number of decisional trends
    appear.
    The most common line of demarcation is between factual
    testimony and testimony about a judge’s deliberative process, as
    suggested in Fayerweather itself.       195 U.S. at 306-07.   While a
    judge may testify “to the extent [the testimony] contains
    personal knowledge of historical facts or expert opinion[,]” a
    court may not consider testimony in which a judge explains his
    reasoning and deliberative process for reaching a decision.
    Washington, 693 F.2d at 1263.     Thus, federal courts have
    permitted judicial testimony about facts when a sufficient basis
    exists for calling the judge to testify and those facts are
    unavailable from other sources.    United States v. Roebuck, 
    271 F. Supp. 2d 712
    , 719-21 (D.V.I. 2003); United States v. Edwards,
    
    39 F. Supp. 2d 692
    , 706 (M.D. La. 1999); United States v.
    Frankenthal, 
    582 F.2d 1102
    , 1106, 1108 (7th Cir. 1978)
    (concluding that a judge could properly testify when that judge
    was the sole possessor of certain facts through which the
    26
    United States v. Matthews, No. 08-0613/AR
    accused was attempting to prove witness bias).    However,
    questions posed to a judge to elicit historical facts cannot
    “probe into the mental processes employed in formulating the
    judgment in question.”9    Roebuck, 271 F. Supp. 2d at 719.
    Further, a judge may be permitted to testify where a
    credible showing of judicial misconduct exists.    Id. at 718.
    Only in the most extraordinary of cases, such as a strong
    showing of bad faith or improper behavior by a judge or
    quasi-judicial officer or where circumstances were such to
    overcome the presumption of regularity as to the acts of
    the decision maker, may a judge be questioned as to matters
    within the scope of his adjudicative duties.
    Id.10
    9
    In a case involving a habeas hearing, the United States Court
    of Appeals for the Seventh Circuit found that not all policy
    reasons support a distinction between testimony concerning facts
    and testimony concerning deliberative processes. Weidner v.
    Thieret, 
    932 F.2d 626
    , 632-33 (7th Cir. 1991), superseded by
    statute on other grounds, AEDPA.
    Memories of mental processes are not . . . more
    perishable than memories of historical facts. Both
    potentially pose the same threat to the finality of a
    judgment, as finality may be called into question
    equally by a judge’s memory of what happened at a
    particular moment at trial and a judge’s memory of why
    she ruled a certain way on a particular motion.
    Id. at 632. However, the Weidner court noted a separate
    distinction in that testimony about mental processes is
    “essentially irrebuttable,” while a party may be able to rebut a
    judge’s testimony about historical facts. Id.
    10
    In surveying the federal common law, we recognize as well that
    a few federal courts have allowed state court judges to testify
    or submit affidavits in the context of habeas hearings. See
    Weidner, 932 F.2d at 633 (concluding the court did not “clearly
    err” when permitting state judge to submit an affidavit in a
    27
    United States v. Matthews, No. 08-0613/AR
    IV.   Applying M.R.E. 509 and Common Law to this Case
    In this case, the CCA ordered a DuBay hearing to examine
    “[w]hether the military judge properly applied Mil. R. Evid.
    512(a)(2) . . .” and “[w]hat, if anything, did the military
    judge say concerning PVT Gibson’s credibility . . . .”   Matthews
    Order, No. ARMY 20030404, slip op. at 6.    The Government called
    the trial military judge to testify at the DuBay hearing and
    questioned the judge about his reasoning and motives for his
    holdings at Appellant’s court-martial.   We recognize that the
    questions posed to the trial military judge were an attempt to
    obey the CCA’s order, however, such a practice is ill-advised,
    regardless of which party calls or compels the trial military
    judge to testify.
    While it is true that the rule has generally been
    applied where the party adverse to the judgment or
    record calls an unwilling judicial or quasi-judicial
    officer for the purpose of contradicting or impeaching
    the record . . ., it does not necessarily follow that
    the result is or should be quite different when the
    testimony of the judge or administrative officer is
    ostensibly offered to support the position sustained
    [below] . . . .
    habeas hearing); Wilson v. Lash, 
    457 F.2d 106
    , 110 (7th Cir.
    1972) (permitting state judge to testify at habeas hearing about
    the quality of defense counsel’s performance at trial),
    superseded by statute on other grounds, AEDPA. However, this
    practice appears more akin to a remand for further analysis or
    factfinding than it is to exploration of a judge’s deliberative
    process, and the cases were decided before Congress passed the
    AEDPA, which had a significant effect on habeas corpus
    jurisprudence. Given the absence of authoritative sources on
    judicial testimony, we nonetheless draw on these cases for
    guidance.
    28
    United States v. Matthews, No. 08-0613/AR
    Feller v. Bd. of Educ., 
    583 F. Supp. 1526
    , 1529 (D. Conn. 1984)
    (citation and quotation marks omitted).
    Moreover, this case is not one involving issues about which
    federal courts have previously permitted trial judges to testify
    -- this is not a habeas case, there is no evidence of judicial
    bad faith or misconduct, and inquiry was not limited to material
    factual matters about which the military judge was uniquely or
    specially situated to testify.   To the contrary, in response to
    questions, the trial military judge provided lengthy testimony
    about his deliberative process for deciding how to rule on
    certain issues at the court-martial.   In fairness to the CCA,
    the DuBay military judge, and the trial military judge, there is
    no definitive military case law from this Court on this issue,
    and sparse federal case law.   But there is a reason for that:
    permitting judicial deliberative process testimony is a bad
    idea, and thus few courts have done so or have addressed these
    issues.
    The limited federal common law that exists, predicated on
    Fayerweather, explains why a military judge’s deliberative
    process should generally be free from consideration in post-
    judgment proceedings.   First, “[t]he prohibition against
    compelling the testimony of a judge is to protect the integrity
    of the legal system itself.”   Roebuck, 271 F. Supp. 2d at 722.
    Permitting a military judge to testify about his deliberative
    29
    United States v. Matthews, No. 08-0613/AR
    process in making a decision at the court-martial could expose
    the judicial system and its judges to “frivolous attacks upon
    its dignity and integrity, and interrupt[] . . . its ordinary
    and proper functioning.”    United States v. Dowdy, 
    440 F. Supp. 894
    , 896 (W.D. Va. 1977) (citation and question marks omitted)
    (omission in original).
    Second, such testimony threatens the finality of judgments.
    Washington, 693 F.2d at 1263.     “When a verdict is rendered,
    neither the judge nor the jury is asked for justifications.      The
    decision may be reviewed and reversed, modified or amended.
    However, the trier of fact is not to be placed on the witness
    stand and cross examined as to the reasons for the outcome,
    absent evidence of improprieties in the decision making process
    itself.”    Morrison, 650 F. Supp. at 807.
    Third, deliberative process testimony disrupts one of the
    basic tenants of evidentiary law -- reliability.    Testimony
    about a judge’s deliberative process poses special risks of
    inaccuracy.    Id.   Here, the trial military judge testified at
    the DuBay hearing three years after the court-martial.     We do
    not doubt the good faith ability of a military judge to recall
    exact details about a court-martial that occurred several years
    prior.    However, the potential for inaccurate recollections
    generally outweighs the probative value that such evidence may
    have.    Washington, 693 F.2d at 1263; see also Perkins, 
    58 F.3d 30
    United States v. Matthews, No. 08-0613/AR
    at 220 (holding that the district court could not consider the
    trial judge’s statements about a case that took place over ten
    years prior).   Moreover, alerted to the legal question in
    appellate controversy, a judge might consciously or
    subconsciously attempt to perfect the record in order to
    withstand appellate review, and do so in good faith.
    Fourth, the concerns surrounding deliberative process
    testimony are compounded because a judge’s testimony regarding
    his own deliberations is “essentially irrebuttable.”   Weidner,
    932 F.2d at 632.
    Admitting the testimony of the decision-maker below not
    only places a heavy burden on the party opposing [that]
    testimony because of that decision-maker’s virtually
    unimpeachable credibility, but it becomes practically
    impossible for a party to challenge the mental impressions
    of a [decision-maker], as his thought process is known to
    him alone.
    Rubens v. Mason, 
    387 F.3d 183
    , 191 (2d Cir. 2004) (citation and
    quotation marks omitted) (alterations in original).
    Fifth, the medium for evaluating a military judge’s
    reasoning is the record of trial, not a DuBay hearing.     Allowing
    a military judge to testify about his reasoning for a particular
    decision provides a disincentive for sufficiently articulating
    his holdings on the record.   Further, parties could also take
    advantage of such a tool to correct record errors to which they
    failed to object or request further explanation from the
    31
    United States v. Matthews, No. 08-0613/AR
    military judge.11   “It is inappropriate . . . to base an
    appellate opinion on assertions dehors the record.”    Crouch, 566
    F.2d at 1316 (citation and quotation marks omitted) (omission in
    original); see also Proffitt v. Wainwright, 
    685 F.2d 1227
    , 1255
    (11th Cir. 1982) (“Such post-decision statements by a judge
    . . . about his mental processes in reaching decision may not be
    used as evidence in a subsequent challenge to the decision.”),
    superseded by statute on other grounds, AEDPA, as recognized in
    Moore v. Campbell, 
    344 F.3d 1313
    , 1324 n.9 (11th Cir. 2003).
    Appellant originally appealed to the CCA to determine
    whether the trial “military judge erred by allowing trial
    counsel to comment upon the defense witness[’s] . . . invocation
    of his Fifth Amendment privilege against self-incrimination, and
    thereafter, improperly drawing an adverse inference based on
    those comments.”    Matthews, 66 M.J. at 645-46.   However,
    Fayerweather cautions against consideration of the judge’s
    deliberative process in response to or in evaluating that
    evidence.   See Brownko Int’l, Inc. v. Ogden Steel Co., 585 F.
    Supp. 1432, 1436 (S.D.N.Y. 1983) (concluding that “the [Supreme]
    Court in Fayerweather[, 195 U.S. at 306-07] in no circumstances
    condones the testimony of the trial judge himself to explain his
    decision”).
    11
    For example, parties may seek to supplement the record
    regarding the manner in which M.R.E. 403 was applied or the
    reasons for seating a contested member.
    32
    United States v. Matthews, No. 08-0613/AR
    This is not a case where the underlying appeal or policy
    implications compel testimony from the trial military judge
    about his reasoning or motivations.    Thus, in formulating its
    opinion, the CCA should not have considered the trial military
    judge’s testimony at the DuBay hearing that described his
    deliberations at the court-martial, regardless of whether the
    trial military judge was willing to testify.
    The Government contends that because the military judge
    provided a brief recitation of the facts and his findings on the
    record, he “waived his deliberative privilege” and could
    “appropriately testif[y] about those limited matters during the
    Du[B]ay hearing.”    Under this reasoning, any time a military
    judge makes findings of fact or conclusions of law on the
    record, he can later be called upon to explain these findings in
    more detail in a subsequent proceeding.    This is inconsistent
    with M.R.E. 509’s incorporation of federal common law, which
    protects a military judge’s deliberative process, and with the
    policy supporting such a protection.    “If a judge seeks to give
    reasons for a decision, we are wiser for what is said on the
    record.   However, once a judicial opinion is written and filed,
    we are all as expert in its interpretation as the hand that
    wrote it.   It belongs to us all.”    Morrison, 650 F. Supp. at
    807.
    33
    United States v. Matthews, No. 08-0613/AR
    In summary, it is “well-settled law that testimony
    revealing the deliberative thought processes of judges . . . is
    inadmissible.”   Rubens, 387 F.3d at 191.   Therefore, we hold
    that the portions of the trial military judge’s DuBay testimony
    in which he explained his deliberative process and reasoning at
    the court-martial are unreviewable evidence that cannot be
    considered by the CCA in this case.   Perkins, 58 F.3d at 220;
    Washington, 693 F.2d at 1263.
    Our conclusion is consistent with the Military Rules of
    Evidence, the Rules for Courts-Martial, and this Court’s
    previous case law.   M.R.E. 601 indicates that “[e]very person is
    competent to be a witness except as otherwise provided in these
    rules.”   Indeed, the subsequent evidentiary rules limit this
    general principle with regard to who may testify and the subject
    matter to which that person may testify.    While M.R.E. 605,
    which addresses the competency of a military judge to serve as a
    witness, does not address a military judge’s deliberative
    process, M.R.E. 605 is generally one of exclusion, rather than
    inclusion.   See Roth, 332 F. Supp. 2d at 566 (interpreting the
    corollary Federal Rule of Evidence).12   Further, our decision is
    12
    In keeping with this principle, some judges have refused to
    testify when subpoenaed. See In re Cook, 
    49 F.3d 263
    , 265 (7th
    Cir. 1995) (noting that the trial judge declined to testify
    about the proceedings at trial); Crenshaw v. Dywan, 
    34 F. Supp. 2d
     707, 710 (N.D. Ind. 1999) (finding that the court could
    properly decline to submit to a deposition).
    34
    United States v. Matthews, No. 08-0613/AR
    consistent with McNutt, 
    62 M.J. 16
    .     In that case, we stated
    that:
    Our holding in this case in no way implies that the
    mental deliberations of military judges are not
    protected or that the decision-making processes of
    military judges are more open to scrutiny than the
    decision-making processes of members. We hold only
    that M.R.E. 606(b) is not the vehicle to protect those
    mental processes of military judges.
    Id. at 20 n.26.    Today we hold that the federal common law
    protection of the deliberative processes of judges is
    incorporated into military law through M.R.E. 509, and
    encompasses military judges sitting alone.    Although the term
    “privilege” in this context is ambiguous, we interpret it in a
    manner consistent with federal common law, and thus also in a
    manner consistent with both M.R.E. 509 and M.R.E. 101.
    CONCLUSION
    In this case, we do not know the extent to which the CCA
    considered the testimony of the military trial judge regarding
    his deliberative process in applying M.R.E. 512, if at all.       In
    light of our conclusion that such testimony is unreviewable, the
    appellate record does not now reflect whether or not the lower
    court would have reached its conclusion on harmless error
    without considering that testimony.    Therefore, the decision of
    the United States Army Court of Criminal Appeals is set aside.
    The record of trial is returned to the Judge Advocate General of
    35
    United States v. Matthews, No. 08-0613/AR
    the Army for remand to that court for review consistent with
    this opinion.
    36
    

Document Info

Docket Number: 08-0613-AR

Citation Numbers: 68 M.J. 29, 2009 CAAF LEXIS 813

Judges: Baker, Effron, Erd-Mann, Stucky, Ryan

Filed Date: 7/23/2009

Precedential Status: Precedential

Modified Date: 11/9/2024

Authorities (25)

lyle-r-goetz-individually-and-on-behalf-of-all-others-similarly , 41 F.3d 800 ( 1994 )

United States v. Roth , 332 F. Supp. 2d 565 ( 2004 )

barbara-rubens-v-roy-l-mason-mason-ketterman-cawood-a-professional , 387 F.3d 183 ( 2004 )

Fayerweather v. Ritch , 25 S. Ct. 58 ( 1904 )

United States v. Edwards , 39 F. Supp. 2d 692 ( 1999 )

United States v. Roebuck , 271 F. Supp. 2d 712 ( 2003 )

Crenshaw v. Dywan , 34 F. Supp. 2d 707 ( 1999 )

United States v. Betty Frankenthal , 582 F.2d 1102 ( 1978 )

United States v. Jose Guadalupe Singleterry and Juan ... , 683 F.2d 122 ( 1982 )

Randy K. Wilson v. Russell E. Lash, Warden, Indiana State ... , 457 F.2d 106 ( 1972 )

United States v. Robert W. Crouch and Albert Kudelka, Jr. , 566 F.2d 1311 ( 1978 )

david-leroy-washington-v-charles-e-strickland-superintendent-florida , 693 F.2d 1243 ( 1982 )

United States v. Dowdy , 440 F. Supp. 894 ( 1977 )

Standard Packaging Corporation v. Curwood, Inc. , 365 F. Supp. 134 ( 1973 )

Feller v. Board of Educ. of State of Conn. , 583 F. Supp. 1526 ( 1984 )

Moore v. Campbell , 344 F.3d 1313 ( 2003 )

In the Matter of Rufus Cook, No. D-217 , 49 F.3d 263 ( 1995 )

Stone v. Immigration & Naturalization Service , 115 S. Ct. 1537 ( 1995 )

Babbitt v. Sweet Home Chapter, Communities for Great Ore. , 115 S. Ct. 2407 ( 1995 )

Morrison v. Kimmelman , 650 F. Supp. 801 ( 1986 )

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