United States v. McDonald

UNITED STATES, Appellee
v.
Dennis S. McDONALD, Hospital Corpsman First Class
U.S. Navy, Appellant
No. 00-0544
Crim. App. No. 98 2175
United States Court of Appeals for the Armed Forces
Argued February 6, 2001
Decided June 20, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE and BAKER, JJ., joined. SULLIVAN and EFFRON, JJ., each
filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant I. L. Paredes, JAGC, USNR (argued);
Lieutenant Mari-Rae Sopper, JAGC, USNR.
For Appellee: Lieutenant Commander Philip Sundel, JAGC, USNR
(argued); Colonel Marc W. Fisher, Jr., USMC (on brief); Major
Mark K. Jamison, USMC.
Military Judges: Daniel J. D’Alesio and Kenneth A. Krantz
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. McDonald, No. 00-0544/NA
Chief Judge CRAWFORD delivered the opinion of the Court.
Pursuant to his pleas, appellant was found guilty of one
specification of committing an indecent act upon a child;
contrary to his pleas, he was found guilty of forceful sodomy
and another specification of committing an indecent act upon the
same child, in violation of Articles 125 and 134, Uniform Code
of Military Justice, 10 USC §§ 925 and 934, respectively. The
convening authority approved the sentence adjudged by the
military judge of a dishonorable discharge, 15 years’
confinement (partially suspended), total forfeitures, and
reduction to the lowest enlisted grade. The Court of Criminal
Appeals affirmed the findings and sentence. 53 M.J. 593 (2000).
We granted review of the following issue:
WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE
SIXTH AMENDMENT’S CONFRONTATION CLAUSE DOES NOT
APPLY TO THE PRESENTENCING PORTION OF A COURT-
MARTIAL, CONTRARY TO THIS COURT’S DECISION IN
UNITED STATES V. GEORGE, 52 M.J. 259 (2000).
We hold that the Sixth Amendment’s Confrontation Clause does not
apply to this presentencing portion of a non-capital court-
martial.* However, the Fifth Amendment’s Due Process Clause does
apply there.
*
See United States v. Morrow, 177 F.3d 272, 304 (5th Cir. 1999); United States
v. Silverman, 976 F.2d 1502, 1511 (6th Cir. 1992)(en banc), cert. denied, 507
U.S. 990 (1993); United States v. Wise, 976 F.2d 393, 401 and n.3 (8th Cir.
1992)(en banc), cert. denied, 507 U.S. 989 (1993); United States v. Helton,
975 F.2d 430, 434 (7th Cir. 1992); United States v. Beaulieu, 893 F.2d 1177,
1180 (10th Cir.), cert. denied, 497 U.S. 1038 (1990).
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FACTS
Prior to the presentation of evidence, the prosecutor
informed the judge that he intended on calling the victim’s
father, an active-duty Sergeant Major in the Army serving with
the Rapid Deployment Force, located at Fort Stewart, Georgia,
who had been present in Jacksonville the day before to testify
as an aggravation witness at sentencing. It was not until the
night of February 16, 1998, that the victim’s father was placed
on alert to be at the air field at midnight on the night of
February 17 to deploy to the Middle East at 6:00 a.m. that
morning because of the crisis with Iraq. The prosecutor
proposed moving the trial to Fort Stewart, or taking his
testimony by deposition or by telephone. Defense counsel
objected that the deposition “would cause undue delay” and the
telephone testimony would violate “the Sixth Amendment right to
confront” the witness. But the defense offered to stipulate to
the testimony. The Government declined to stipulate to the
testimony. The judge then proceeded to hear testimony. After
the victim testified, the matter came up again.
The judge stated:
[A]ny attempt to move either all of the court
personnel or counsel for each side for a
deposition would involve a major part of a work
day just in travel time necessary, setup and the
actual testimony and, with a deploying unit and a
senior NCO, I think that is simply impracticable.
As between the two most feasible methods, one
favored by each side, telephonic testimony, while
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United States v. McDonald, No. 00-0544/NA
it does not accord face-to-face confrontation, but
neither does a stipulation, and affords the
opportunity for full cross-examination and to
explore issues of opportunity that may be
suggested by direct examination, it appears to be
-- given that neither method will show the
witness’ visual demeanor, to give a more nearly
full rendition of the testimony than a written
stipulation can in circumstances where the witness
is pretty clearly unavailable and there is no
dispute as the underlying facts surrounding the
unavailability.
The Government earlier announced it was fully prepared to
bear the cost of moving the proceedings or conducting a
deposition at the other post and did not assert any reasons
other than those mentioned by the judge that precluded hearing
the testimony of the other witnesses the next day. There is
nothing in the record indicating why the interests of the other
witnesses outweighed the impact on the court-martial of a one-
day delay for such proceedings or deposition.
The court below held “that the Confrontation Clause does
not apply to post-conviction, non-capital, presentence
proceedings,” and thus, the Confrontation Clause does not
prohibit taking testimony on the telephone. The Court of
Criminal Appeals recognized that this Court has not previously
addressed this question. 53 M.J. at 598.
DISCUSSION
The federal, state, and military criminal law systems share
a number of traditional sentencing goals including
rehabilitation, specific deterrence, general deterrence,
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United States v. McDonald, No. 00-0544/NA
incapacitation, retribution, and restitution. See, e.g., United
States v. Lania, 9 M.J. 100 (CMA 1980).
There are, however, differences as well as similarities
among the military, federal, and state sentencing procedures.
Cf. United States v. Lacy, 50 M.J. 286, 287 (1999). The military
justice system also differs because sentencing includes
consideration of morale, as well as good order and discipline,
together with unique penalties, such as punitive separation,
reduction in rank, and forfeiture of pay. The issue in this
case requires us to examine Constitutional, Codal, and Manual
for Courts-Martial provisions applicable to sentencing in the
military.
Constitution. The Fifth Amendment provides: “No person
shall be ... deprived of life, liberty, or property, without due
process of law....” The Sixth Amendment provides: “[T]he
accused shall enjoy the right ... to be confronted with the
witnesses against him; [and] to have compulsory process for
obtaining witnesses in his favor.” The latter provisions were
codified in Article 46, UCMJ, 10 USC § 846, which provides that
the “defense counsel ... shall have equal opportunity to obtain
witnesses and other evidence in accordance with such regulations
as the President may prescribe.”
The Supreme Court has interpreted both the Due Process
Clause and the Sixth Amendment right of compulsory process and
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United States v. McDonald, No. 00-0544/NA
confrontation in connection with federal sentencing procedures.
A fundamental requirement of due process is that individuals
subjected to proceedings by the Government are entitled to the
safeguards established in the governing statutes and
regulations, and that the Government must follow the prescribed
procedures, regardless whether they are constitutionally
required. Vitarelli v. Seaton, 359 U.S. 535 (1959); United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The
present case ultimately involves the question whether the
procedure comported with due process in terms of compliance with
the safeguards established in the applicable Rules for Courts-
Martial and Military Rules of Evidence.
In Williams v. New York, 337 U.S. 241, 245 (1949), the
Court rejected a “broad constitutional challenge” to the “New
York procedural policy [that] encourages [the judge] to consider
information about the convicted person’s past life, health,
habits, conduct, and mental and moral propensities in the
context of a death sentence.” Justice Black, speaking for the
Court, noted that
both before and since the American colonies became
a nation, courts in this country and in England
practiced a policy under which a sentencing judge
could exercise a wide discretion in the sources and
types of evidence used to assist him in determining
the kind and extent of punishment to be imposed within
limits fixed by law. Out-of-court affidavits have
been used frequently, and of course in the smaller
communities sentencing judges naturally have in mind
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United States v. McDonald, No. 00-0544/NA
their knowledge of the personalities and backgrounds
of convicted offenders.
Id. at 246 (footnote omitted).
The judge’s task requires consideration of “the fullest
information possible concerning the defendant’s life and
characteristics.” Id. at 247. The Court acknowledged the need
for presentence reports, id. at 249, and “recognize[d] that most
of the information now relied upon by judges to guide them in
the intelligent imposition of sentences would be unavailable if
information were restricted to that given in open court by
witnesses subject to cross-examination.” Id. at 250. In light
of the need for individualized sentences, the Court could not
“say that the due process clause renders a sentence void merely
because a judge gets additional out-of-court information.” Id.
at 252.
In Specht v. Patterson, 386 U.S. 605 (1967), the Court held
that there was a denial of due process when sentence enhancers
(such as the defendant is “an habitual offender and mentally
ill”) were used “(1) without a hearing at which ... [he] may
confront and cross-examine adverse witnesses and present
evidence of his own by use of compulsory process, if necessary;
and (2) on the basis of hearsay evidence to which ... [he was]
not allowed access.” The Court found the sentence enhancer
“radically different” from the Williams “situation.” Id. at
608. The High Court reaffirmed that position in McMillan v.
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United States v. McDonald, No. 00-0544/NA
Pennsylvania, 477 U.S. 79, 91-92 (1986), concluding that
preponderance of the evidence was an adequate burden of proof to
establish a fact that in turn invoked a mandatory minimum
sentence.
In summary, the Constitution requires that evidence
admitted during sentencing must comport with the utilitarian
purpose of the Due Process Clause, i.e., reliability, and
procedural-due-process requirements. In contrast to federal
civilian sentencing in non-capital cases, sentencing in the
military justice system, even in non-capital cases, is
adversarial based on the procedure established by Congress and
the President. Thus, in addition to looking at the
constitutional sources of rights, we must also examine the Code,
the Manual, and the Military Rules of Evidence to determine
whether greater rights are given to military defendants.
Statute. Subchapter VIII of the Uniform Code of Military
Justice sets forth the Articles on sentencing. Generally, it
gives discretion to the court-martial to determine an
appropriate sentence within “such limits as the President may
prescribe” for the offense for which the accused has been
convicted. Article 56, 10 USC § 856. These rules are set forth
in the Manual for Courts-Martial.
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United States v. McDonald, No. 00-0544/NA
Procedure and Evidence
Manual for Courts-Martial. Article I, § 8, clause 14,
gives Congress the discretion to create a military criminal law
system, and Article 36(a), UCMJ, 10 USC § 836(a), authorizes the
President to promulgate Rules for Courts-Martial for sentencing.
RCM 1001-1009, Manual for Courts-Martial, United States (2000
ed.). These rules have evolved over time. Denise K. Vowell, To
Determine an Appropriate Sentence: Sentencing in the Military
Justice System, 114 Mil.L.Rev. 87 (1986). Except when there is
a mandatory sentence, the sentence within Presidential or Codal
limits is left to the discretion of the sentencing authority.
RCM 1001 establishes the order of presentation, form, and
general substance of admissible evidence during the sentencing
procedures. The Drafters stated that RCM 1001
allows the presentation of much of the same
information to the court-martial as would be
contained in a presentence report, but it does
so within the protections of an adversarial
proceeding ... although they [the rules] may be
relaxed for some purposes. See subsections (b)(4)
and (5), (c)(3), (d), and (e) of this rule.
Drafters’ Analysis, Manual, supra at A21-69. Under that rule an
accused has a limited right to production of witnesses (RCM
1001(e)(1)) and the right to cross-examination of witnesses (RCM
1001(c)(3)). See Art. 46, UCMJ, 10 USC § 846. The Military
Rules of Evidence are applicable to sentencing, see Analysis of
RCM 1001, Manual, supra at A21-69; thus providing procedural
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United States v. McDonald, No. 00-0544/NA
safeguards to ensure the reliability of evidence admitted during
sentencing. Mil.R.Evid. 1101, Manual, supra. Under Mil.R.Evid.
1101(c), the Rules of Evidence “may be relaxed in sentencing
procedures as provided under RCM 1001 and otherwise as provided
in this Manual.”
RCM 1001(b)(4) relaxes the rules of evidence concerning the
prosecution’s evidence in aggravation in non-capital cases by
providing that “a written or oral deposition taken in accordance
with RCM 702 is admissible.” RCM 1001(e) governs production of
witnesses. RCM 703(c)(2) requires the defense to provide trial
counsel with a list of witnesses whose production is requested,
including the reasons why production of the witnesses is
necessary under RCM 1001(e). Subsection 1 of that Rule sets out
general guidance on the production of witnesses by providing
that “[d]uring the presentence proceedings, there shall be much
greater latitude than on the merits to receive information by
means other than testimony presented through the personal
appearance of witnesses.” It goes on to state: “Whether a
witness shall be produced to testify during presentence
proceedings is a matter within the discretion of the military
judge, subject to the limitations in subsection (e)(2).”
A “witness may be produced to testify during presentence
proceedings through a subpoena or travel orders at Government
expense only if” certain criteria are met, including a
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United States v. McDonald, No. 00-0544/NA
determination that “[o]ther forms of evidence, such as oral
depositions, written interrogatories, or former testimony would
not be sufficient to meet the needs of the court-martial in the
determination of an appropriate sentence.” RCM 1001(e)(2) and
(D) (emphasis added). A balancing test is applied by the judge
who measures whether the “significance of the personal
appearance of the witness to the determination of an appropriate
sentence, when balanced against the practical difficulties of
producing the witness, favors production of the witness.” RCM
1001(e)(2)(E). See also United States v. Combs, 20 M.J. 441 (CMA
1985); United States v. Loya, 49 M.J. 104 (1998).
In summary, the President has provided rules to ensure
“relevant and reliable” evidence. United States v. Ariail, 48
M.J. 285, 287 (1998). See also United States v. Prevatte, 40 M.J.
396, 397 n.* (CMA 1994). With respect to the prosecution’s
evidence in aggravation, the safeguards in the Rules of Evidence
apply. Id. RCM 1001(e)(2)(D) permits the Rules to be relaxed
only to the extent that the testimony is offered in “forms of
evidence such as” an oral or written deposition. This rule does
not preclude taking testimony by telephone.
In the present case the testimony at issue was from the
victim’s father. As he was part of the prosecution’s case in
aggravation, his testimony was subject to the provisions of RCM
1001(b)(4). Cf. RCM 1001(e). The prosecution’s offer to take
11
United States v. McDonald, No. 00-0544/NA
and present the witness’ testimony by deposition certainly would
have comported with the Rules. The military judge, however,
decided to take the testimony by telephone. The defense
objected both to the deposition and to the telephone testimony.
Both political branches of Government have considered this
matter and have authorized depositions. Neither have prohibited
testimony by telephone during sentencing. The military judge,
faced with an unusual situation and the likelihood that the
testimony would be temporarily lost, had to craft a creative
solution to meet the needs of a party or unforeseen military
exigency.
Similarly we need not decide whether the President may
authorize presentencing testimony in aggravation by means other
than the specific examples given in the rules. The relative
merits of depositions versus other forms of testimony, including
telephone conferencing, are matters to be assessed in the
process set forth in Article 36 -- in terms of opportunities for
examination, cross-examination, and impact on the deliberations
-- which will determine the scope and content of such rules, if
any.
We hold that the Court of Criminal Appeals was correct in
holding that the Confrontation Clause does not apply. United
States v. George, 52 M.J. 259 (2000), does not compel a different
result. The Court in George held that admission of evidence of
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United States v. McDonald, No. 00-0544/NA
“future risks” was harmless error under the circumstances. Id.
at 262. The Court did not decide whether the Sixth Amendment
applied to sentencing testimony, because it assumed the error
was constitutional in nature in light of George’s assertion and
the Government’s concession that the error was of constitutional
magnitude. Id. at 261. Unlike George, there is no government
concession in this case or an unchallenged holding by the court
below that there was error. Since Congress would not be
disabled from changing the sentencing procedures in the
military, it is only logical to conclude that the Sixth
Amendment right of confrontation does not apply to the
presentencing portion of a non-capital court-martial.
However, under Williams, the Due Process Clause requires
that the evidence introduced in sentencing meet minimum
standards of reliability. Those requirements were met here.
There is no evidence to suggest that the victim’s father’s
testimony was unreliable or his identity questioned.
Additionally, there was notice to the defense, right to counsel,
right of cross-examination, and a presentation of the evidence
by telephone to the judge as the sentencing authority. The
record establishes that the “practical difficulties of producing
a witness,” including the cost and timing, were such that the
judge did not abuse his discretion in allowing the victim’s
father’s testimony to be taken by telephone. Cf. United States
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United States v. McDonald, No. 00-0544/NA
v. Hill, 4 M.J. 33, 37 n.18 (CMA 1977). See also United States v.
Rich, 12 M.J. 661, 663 n.3 (ACMR 1981). In any event, any error
in this case was harmless. We do not suggest that telephone
testimony is appropriate in all cases. Manual guidance to the
military judge during sentencing is sufficient to ensure the
proper balance between obtaining needed testimony and
safeguarding rights of the accused.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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United States v. McDonald, 00-0544/NA
SULLIVAN, Judge (concurring in the result):
This was a trial by military judge alone (Article 16(1)(B),
Uniform Code of Military Justice, 10 USC § 316(1)(B)), and
appellant’s sentence was determined by a judge using the Rules
for Courts-Martial promulgated by the President under Article
36(a), UCMJ, 10 USC § 836(a). See RCM 1001-1009, Manual for
Courts-Martial, United States (1995 ed). Appellant objected to
the admission of sentencing testimony by the victim’s father,
over the telephone, offered by the prosecution as aggravation
evidence.
There is no express provision in the Military Rules of
Evidence authorizing the taking of testimony for sentencing by
telephone. However, RCM 1001(e)(1) might be broad enough to
1
allow this sentencing procedure. It states:
1
This Manual rule is based in part on Article 46, Uniform Code
of Military Justice, 10 USC § 846. It states:
§ 846. Art. 46. Opportunity to obtain
witnesses and other evidence
The trial counsel, the defense counsel,
and the court-martial shall have equal
opportunity to obtain witnesses and other
evidence in accordance with such
regulations as the President may
prescribe. Process issued in court-
martial cases to compel witnesses to
appear and testify and to compel the
production of other evidence shall be
similar to that which courts of the United
States having criminal jurisdiction may
lawfully issue and shall run to any part
United States v. McDonald, No. 00-0544/NA
(e) Production of witnesses.
(1) In general. During the
presentence proceedings, there shall be
much greater latitude than on the merits
to receive information by means other than
testimony presented through the personal
appearance of witnesses. Whether a
witness shall be produced to testify
during presentence proceedings is a matter
within the discretion of the military
judge, subject to the limitations in
subsection (e)(2) of this rule.
Discussion
See R.C.M. 703 concerning the
procedures for production of witnesses.
(2) Limitations. A witness may be
produced to testify during presentence
proceedings through a subpoena or travel
orders at Government expense only if—
(A) The testimony expected to
be offered by the witness is necessary for
consideration of a matter of substantial
significance to a determination of an
appropriate sentence, including evidence
necessary to resolve an alleged inaccuracy
or dispute as to a material fact;
(B) The weight or credibility
of the testimony is of substantial
significance to the determination of an
appropriate sentence;
(C) The other party refuses to
enter into a stipulation of fact
containing the matters to which the
witness is expected to testify, except in
an extraordinary case when such a
stipulation of fact would be an
insufficient substitute for the testimony;
of the United States, or the Territories,
Commonwealths, and possessions.
(Emphasis added.)
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United States v. McDonald, No. 00-0544/NA
(D) Other forms of evidence,
such as oral depositions, written
interrogatories, or former testimony would
not be sufficient to meet the needs of the
court-martial in the determination of an
appropriate sentence; and
(E) The significance of the
personal appearance of the witness to the
determination of an appropriate sentence,
when balanced against the practical
difficulties of producing the witness,
favors production of the witness. Factors
to be considered include the costs of
producing the witness, the timing of the
request for production of the witness, the
potential delay in the presentencing
proceeding that may be caused by the
production of the witness, and the
likelihood of significant interference
with military operational deployment,
mission accomplishment, or essential
training.
(Emphasis added in text.)
Nevertheless, appellant rests his right-of-confrontation
claim on the Sixth Amendment and the Supreme Court’s decision in
Specht v. Patterson, 386 U.S. 605 (1967). He contends that where
sentencing is done in “an adversarial criminal proceeding” (see
generally Middendorf v. Henry, 425 U.S. 25, 35 (1976)), he is
entitled to his full Sixth Amendment rights, including the right
to confront and cross-examine the witnesses against him. See
also United States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir.
1990). He further avers that sentencing at a court-martial is an
adversarial criminal proceeding subject to the Sixth Amendment.
I agree with the majority that the Sixth Amendment does not
require an adversarial sentencing proceeding with a right of
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United States v. McDonald, No. 00-0544/NA
confrontation. See Williams v. New York, 337 U.S. 241 (1949).
Nevertheless, the President, as authorized by Congress, has
provided a limited adversarial sentencing proceeding with a
limited right of confrontation in the court-martial system. See
RCM 1001(e). See generally Weiss v. United States, 510 U.S. 163,
176-81 (1994). The purpose of this proceeding is to determine an
“appropriate sentence.” RCM 1001 (a)(1).
In my view, Specht v. Patterson, supra at 608, did not
address a sentencing hearing of this type. There, after
conviction, “a new finding of fact” by the judge was required by
Colorado law (“whether a person constitutes a threat of bodily
harm to the public, or is an habitual offender and mentally
ill”), which was to serve as the basis for criminal commitment of
an accused beyond that authorized for his original conviction.
The Supreme Court held that this procedure, in effect, amounted
to an additional criminal proceeding under the Colorado Sex
Offenders Act. Such a proceeding is clearly not the same as the
continuous sentencing procedure at courts-martial, so I conclude
that Specht is not applicable to appellant’s case.
Today, the sentencing procedures at courts-martial have
become more akin to those now in the federal court system which
do not require Sixth Amendment confrontation. See United States
v. Wise, 976 F.2d 393, 398 n.2 (8th Cir. 1992). However, as
noted in the majority opinion, federal cases clearly recognize a
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United States v. McDonald, No. 00-0544/NA
limited Fifth Amendment right to confrontation at these
proceedings. See United States v. Goldfaden, 959 F.2d 1324, 1330
(5th Cir. 1992). Courts-martial sentencing procedures clearly
meet minimum Fifth Amendment due process standards in the sense
that they do provide an accused “adequate notice of and an
opportunity to rebut or explain information that is used against
him.” (E.g., RCM 1001(d) (rebuttal and surrebuttal)). See
United States v. Beaulieu, 893 F.2d 1177, 1181 (10th Cir.), cert.
denied, 497 U.S. 1038 (1990). In my view, the telephonic portion
of appellant’s sentence hearing did not deny him adequate due
process; even if error did occur, either under the Manual or the
Fifth Amendment, it was harmless beyond a reasonable doubt as
explained by Judge Effron in his separate opinion.
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United States v. McDonald, No. 00-0544/NA
EFFRON, Judge (concurring in the result):
I agree with the majority opinion that the use of telephonic
testimony did not violate the Sixth Amendment. I respectfully
disagree, however, with the opinion’s conclusion that the military
judge did not abuse his discretion when he permitted testimony by
telephone in this case.
In the present case, the proponent of the testimony -- the
prosecution -- offered to take and present the witness’ testimony by
deposition. The military judge erred by not ordering a deposition
as requested. Use of a deposition during sentencing is authorized
expressly in RCM 1001(b)(4), Manual for Courts-Martial, United
States (2000 ed.), which governs the prosecution’s evidence in
aggravation in non-capital cases. The Rule allows two forms of
evidence other than in-court witness testimony – oral and written
depositions. RCM 702 provides detailed rules for the conduct of
oral and written depositions. An oral deposition proceeds in the
same manner as testimony at trial, with oral examination and cross-
examination by counsel. In a written deposition proceeding, the
questions are prepared in advance and are propounded by the
deposition officer. In both formats, the parties are represented by
counsel, the witness provides verbal answers, and the proceedings
are recorded by a reporter or on videotape, audiotape, or sound
film. In the present case, for example, the deposition could have
United States v. McDonald, No. 00-0544/NA
been recorded on videotape and replayed during the court-martial.
By contrast, there are no procedural safeguards specified for
telephonic testimony, and the demeanor of the witness cannot be
observed by counsel or the court-martial.
Although the telephone is a well-established means of
communication that long predates videotape, the President has not
authorized telephonic depositions or testimony in the circumstances
of the present case. The majority opinion’s reliance on RCM
1001(e)(2)(D) as authority for telephonic testimony is misplaced.
That Rule simply provides that the Government is not obligated to
produce a live witness through a subpoena or travel orders unless
“[o]ther forms of evidence, such as oral depositions, written
interrogatories, or former testimony would not be sufficient to meet
the needs of the court martial in the determination of an
appropriate sentence.” The reference in that Rule to three
traditional forms of evidence with established roots in the Manual
provides no authority for the creation of novel forms of evidence on
behalf of the prosecution. Because the President has not authorized
telephonic testimony by the prosecution when presenting evidence in
aggravation under RCM 1001(b)(4), such testimony is not admissible
unless it otherwise would be admissible under the Rules of Evidence.
If the military judge in the present case had granted the
prosecution’s request to take the testimony of the sentencing
witness by deposition, his action would have comported with the
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United States v. McDonald, No. 00-0544/NA
Rules. The military judge, however, decided to take the testimony
by telephone. This is not a case in which the military judge was
faced with an unprecedented situation involving, for example, a
military exigency in which testimony would be lost unless he crafted
a creative solution. Although the witness’ deployment was imminent,
the military judge could have used an authorized procedure, a
deposition, that was fully acceptable to the Government -- the party
that was the proponent of the witness. The only reasons the
military judge gave on the record for rejecting a deposition were
based on administrative efficacy: other witnesses would be
inconvenienced and the trial would not conclude as swiftly as
anticipated if a day were taken for the deposition at another post.
In the absence of a compelling necessity for creating a judicial
exception to RCM 1001(b)(4), the military judge erred by not
ordering a deposition. The question of whether telephonic testimony
should be permitted in sentencing proceedings is a matter that
should be addressed in the Manual after careful consideration in the
rulemaking process, not through judicial decisions at the trial and
appellate levels in a case involving administrative convenience.
I agree with the ultimate conclusion reached by the
majority opinion, however, because the error was harmless in
this case. The defense was allowed to cross-examine the witness
and did not develop any significant issues. The accused was
tried by a military judge alone and the judge ruled that he
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United States v. McDonald, No. 00-0544/NA
would not consider the impact of the witness’ deployment as an
aggravating factor. In a bench trial, the "prejudicial impact
of erroneously admitted evidence is . . . substantially less
than it might have been in a jury trial." United States v.
Cacy, 43 M.J. 214, 218 (1995), quoting United States v. Cardenas,
9 F.3d 1139, 1156 (5th Cir. 1993), cert. denied, 511 U.S. 1134
(1994).
4