United States v. Johnson

SULLIVAN, Judge

(concurring in the result):

There is no exclusionary rule at trial for the testimony of a witness who was unlawfully subpoenaed for an earlier Article 32 hearing. Moreover, there is no per se reversal rule for a court-martial preceded by an Article 32 hearing where legal error occurred. Instead, in the context of a failure to provide an accused with qualified counsel at an Article 32 hearing, this Court has stated the following:

A defect in the preliminary proceeding will not justify setting aside a conviction unless it clearly appears that the error prejudiced the accused in some .material respect at the trial---- Once the case comes to trial on the merits, the pretrial proceedings are superseded by the procedures at the trial; the rights accorded to the accused in the pretrial stage merge into his rights at trial. If there is ... no indication that these proceedings adversely affected the accused’s rights at the trial, there is no good reason in law or logic to set aside his conviction.

United States v. Mickel, 9 USCMA 324, 326, 327, 26 CMR 104,106,107 (1958). Thus, this Court looks to the effect of a pretrial error on the trial, rather than the lawfulness of the Article 32 inquiry, in determining whether reversible error occurred. Here, I can discern no material prejudice to appellant’s trial rights as a result of this pretrial error.

Appellant’s wife was properly subpoenaed for trial. Defense counsel cross-examined her at trial and used her Article 32 testimony to impeach her credibility. A military police investigator also interviewed appellant’s wife two times besides the illegal Article 32 appearance; he testified at trial that during these interviews, appellant’s wife said appellant hit the victim in the eye on two occasions. R. 230-31. There was nothing in appellant’s wife’s Article 32 testimony used to impeach her that also was not contained in these other two sworn statements. There also was ample physical evidence on which to convict appellant of the crimes for which he was charged, ie., the Government’s case did not solely consist of appellant’s wife’s testimony, let alone her Article 32 testimony. Finally, appellant received the benefit of the military judge’s instruction that emphasized the illegality of the subpoena.

Under all of these circumstances, I would dispose of this case on the bases that there is no exclusionary rule for evidence obtained from a witness unlawfully subpoenaed for an Article 32 hearing and that in any event appellant suffered no prejudice from the unlawful pretrial subpoena.^*

* Under English common law, there was no absolute exclusionary rule for unlawfully obtained evidence; and, much of the case law has centered around the breadth of the trial judge’s discretion to admit or exclude evidence and the circumstances affecting this decision. See, e.g., Kuruma, Son of Kaniu v. R. [1955] A.C. 197, 203 (P.C.) (Kenya) (affirming lower court's ruling that evidence obtained by means of an unauthorized search was admissible on ground that "the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained”) (Lord Goddard, C.J.), citing, inter alia, Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Jeffrey v. Black [1978] Q.B. 490, 497-98 (D.C.) (finding that lower court erred in excluding evidence obtained by unauthorized and nonconsensual police search on ground that test for admissible evidence is whether it was relevant and not whether it was properly obtained; trial judge may exercise discretion to exclude evidence obtained by trickery or other oppressive, unfair, or morally reprehensible means, but such circumstances are very exceptional) (Lord Widgery, C.J.); R. v. Sang [1980] A.C. 402, 437 ("Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, [a trial judge] has no discretion to refuse to admit relevant admissible evidence [obtained here by police inducement] on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.”) (Lord Diplock) [Lord Diplock is considered to be one of England’s greatest jurisprudential thinkers in the 20th Century.]; see Kersi B. Shroff and Stephen F. Clarke, Admissibility of Illegally Obtained Evidence: A Comparative Analysis of the Laws of England, Scotland, Ireland, Canada, Australia, and New Zealand, Library of Congress Law Library, American-British Law Division 7-16 (1981) (discussing issue of admissibility of illegally obtained evidence in England and noting that, in cases in which issue has been "directly presented,” the courts "have virtually always ruled in favor of admissibility” — at 7).

In 1984, the United Kingdom attempted by legislation to clarify some of the uncertainty regarding the proper scope of the trial judge’s discretion in admitting unlawfully obtained evidence. See Police and Criminal Evidence Act 1984 § 78, Exclusion of unfair evidence, Notes, Vol. 17, at 236 (Halsbury’s Statutes 4th ed.1999 reissue). Section 78(1) provides:

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

§ 78(1).

In the cases following passage of § 78, there is still a trend toward admission of unlawfully obtained evidence. See R. v. Khan (Sultan) [1996] 3 All ER 289, 302 (H.L.) (dismissing appeal on grounds that unlawful use of surveillance devices did not render evidence inadmissible (Lord Nolan) and that trial judge’s discretion had to be exercised according to whether admission of evidence would render trial unfair (Lord Nicholls of Birkenhead)). The fact that evidence was obtained unlawfully does not necessarily mean that it had an adverse effect on the trial. E.g., R. v. Chalkley [1998] Q.B. 848, 874, 876 (C.A.) (holding that unlawful or oppressive police conduct does not "automatically” require exclusion of evidence under § 78, and dismissing appeal on ground that admission of evidence obtained by audio surveillance was fair with regard to all circumstances).