United States v Woods, PUnited States v Woods, P
A general court-martial of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of attempted murder and one specification of kidnapping in violation of
- The military judge erroneously concluded evidence from C.W.’s medical records was privileged and not subject to production or use at trial under Military Rule of Evidence (Mil. R. Evid.) 513.1
- The military judge erroneously excluded most of the unredacted portions of C.W.’s 2017 medical records under Mil. R. Evid. 401 and 403.
- The military judge abused her discretion in concluding that the destroyed evidence was not apparently exculpatory and in crafting “other relief” in lieu of abatement under Rule for Court-Martial (R.C.M.) 703.
- The trial counsel engaged in prosecutorial misconduct by making improper closing and rebuttal arguments, which the military judge failed to adequately address in her curative instructions.
- Unlawful command influence occurred when a “shadow judiciary” composed of other military judges, including the chief trial judge, began to preside de facto over the court-martial.
- Appellant is entitled to additional confinement credit.
- Appellant was deprived of his constitutional right to a unanimous verdict.
- Cumulative error denied Appellant a fair trial.2
In AOE I, we confront an issue that has split both military and civilian courts: whether and when the psychotherapist-patient privilege must give way to an accused’s individual rights. We ultimately side with our Army brethren to conclude that acting together, Congress and the President unambiguously removed any exception based on the evidentiary value of protected communications to an accused and that application of this more absolute privilege in a court-martial is constitutional. Accordingly, we conclude the military judge did not abuse her discretion by ruling that portions of a mental health record were privileged under
Background
In April 2022, Appellant’s wife, C.W., awoke to find Appellant straddling her and cutting her arms with a knife. For two hours, she fought him, attempted to call 911, pleaded with him, and briefly escaped the bedroom, only to be dragged back. After members of his command told Appellant they were on their way to check on him, Appellant returned C.W.’s phone to her, and she called 911. Appellant admitted to first responders and others that he had caused the injuries to C.W.
At trial, the Defense sought to show that C.W. had caused the injuries herself and, having previously been abusive toward Appellant, convinced him to take responsibility. In pursuit of this theory of the case, the Defense sought discovery and later admission of medical records from a 2017 incident where police transported C.W. to an emergency room (ER) after family members reported that she was out of control and posed a threat to herself and others.
Mil. R. Evid. 513
In 1999, following the Supreme Court’s recognition of a federal psychotherapist-patient evidentiary privilege in Jaffee v. Redmond, 518 U.S. 1 (1996), the President enacted
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to a psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.
Here, Appellant sought production of records pertaining to C.W.’s treatment for a mental or emotional condition during an ER visit in 2017. Partially granting and partially denying the motion, the military judge ordered production of records not privileged under
Despite the production order, the hospital provided the military judge a 72-page record that included both non-privileged information and privileged communications under
Appellant made a second motion for discovery of the full, unredacted records. The military judge denied Appellant’s motion, holding that the redacted material from the 2017 records was privileged under
On appeal, Appellant makes three arguments as to why the redacted portions of the records were not subject to the privilege: (1) None of the medical professionals who saw C.W. during her 2017 ER visit were “psychotherapists” or “assistants to the psychotherapist” within the meaning of
Standard of Review
To the extent that Appellant preserved these objections, we review the military judge’s ruling for an abuse of discretion. United States v. Chisum, 77 M.J. 176, 179 (C.A.A.F. 2018). To the extent he did not, we review for plain error. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). “Preserving an argument requires a ‘particularized objection.’ ” United States v. Harborth, 85 M.J. 469, 475 (C.A.A.F. 2025) (quoting United States v. Perkins, 78 M.J. 381, 390 (C.A.A.F. 2019)).
Although Appellant generally sought the full records from the 2017 ER visit, he did not raise the argument that the ER providers failed to qualify as “psychotherapists” or “assistants to psychotherapists” under
Appellant did, however, preserve his second and third objections, so we review these for an abuse of discretion. Chisum, 77 M.J. at 179. “An abuse of discretion occurs when a military
Analysis
Applying these standards, we now consider Appellant’s objections in the context of the military judge’s decisions, in the order she made them: (1) her initial denial of production or in camera review of privileged communications under
1. Initial Ruling
The parties do not dispute that because Appellant sought production of records of C.W.’s diagnosis and treatment for her mental or emotional condition, the procedures of
Adhering to these procedures, Appellant moved for in camera review and subsequent discovery of privileged as well as non-privileged portions of the ER records. After conducting a closed hearing, the military judge concluded that Appellant had met his burden to show that non-privileged portions of the ER records were relevant and necessary, but that he had not met his burden for in camera review of records of communications protected under the privilege. Accordingly, she ordered the hospital to provide non-privileged records for her in camera review.
We conclude that this was not an abuse of discretion. Before a military judge may order in camera review of protected communications, the moving party has the burden of showing by a
At the direction of Congress, the President explicitly removed the “constitutionally required” exception from
In J.M. v. Payton-O‘Brien, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) concluded that “by removing the constitutional exception from the rule and adding the separate requirement that any piercing of the privilege meet one of the remaining seven enumerated exceptions for in camera review,” Congress and the President had unambiguously strengthened the psychotherapist-patient privilege to make it “absolute—outside of the extant exceptions—without consideration for the constitutional concerns of the [accused].” 76 M.J. 782, 786–87 (N-M. Ct. Crim. App. 2017). But it went on to state that “noble goals and notable policy concerns cannot trump the [accused’s] right to ‘a meaningful opportunity to present a complete defense.’ ” Id. at 789 (quoting Holmes v. South Carolina, 547 U.S. 319, 324 (2006)). Accordingly, the court held that there are “situations in which the privacy rights of the victim may yield to the constitutional rights of the accused,” such as due process and confrontation. Id. at 789.
Accordingly, the Payton-O‘Brien court imposed the following framework: if the moving party otherwise meets the requirements for in camera review under
“[I]f the victim elects not to waive the privilege after the military judge has determined it is constitutionally necessary, then the military judge may consider remedial measures.” Id. These may include, but are not limited to: (1) striking or precluding all or part of a witness’s testimony; (2) dismissing any charge or charges, with or without prejudice, (3) abating the proceedings permanently, or for a time certain; or (4) declaring a mistrial. Id. at 791.
NMCCA advances this protocol to protect the constitutional rights of the accused while:
scrupulously honor[ing] the victim’s choice of whether—and how much—to waive the privilege. The military judge never orders the production or release of materials that do not fall under an enumerated exception to the privilege. Instead, the victim retains the authority to assert the privilege at any time along the process.
NMCCA has followed this protocol in subsequent cases. See, e.g., In Re B.M., 83 M.J. 704 (N-M. Ct. Crim. App. 2023), aff‘d sub nom. B.M. v. United States, 84 M.J. 314 (C.A.A.F. 2024), cert. denied, 145 S. Ct. 984 (2024); United States v. Jacinto, 79 M.J. 870 (N-M. Ct. Crim. App. 2020), aff‘d in part, set aside in part, 81 M.J. 350 (C.A.A.F. 2021), modified on reconsideration, 81 M.J. 464 (C.A.A.F. 2021).
In United States v. Tinsley, the United States Army Court of Criminal Appeals (ACCA) came to a different conclusion. 81 M.J. 836 (A. Ct. Crim. App. 2021). The military judge had denied Tinsley’s motion to compel production of the victim’s mental health records. Tinsley
ACCA categorically rejected Tinsley’s contention. Noting the President’s authority to define privileges and their exceptions, it declined “to either ‘read back’ the constitutional exception into [
Civilian federal courts, too, have reached “different conclusions about whether the psychotherapist-patient privilege must bend” to a criminal defendant’s constitutional rights. United States v. Carter, No. 2:25-CR-00089-JAW-1, 2025 WL 3524288, at *9–11 (D. Me. Dec. 9, 2025) (compiling cases).
After careful deliberation, we agree with Tinsley. We hold that Congress and the President may constitutionally establish a psychotherapist-patient privilege that, much like the attorney-client and clergy privileges, see
In our system, it is Congress and the President—not the judiciary—who establish privileges and their contours and exceptions.
The U.S. Constitution is at the pinnacle of the hierarchy of law we apply in each case, so—of course—we always have an obligation to ensure statutes and rules do not deprive an accused of his constitutional rights. United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997) (citing United States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992)). In this sense, we fully agree with our Navy-Marine Corps brethren that “we may not allow the privilege to prevail over the Constitution.” Payton-O‘Brien, 76 M.J. at 787–88. But here is where we disagree: however the “constitutionally required” exception may have been interpreted and applied in the past, the policy decision that, moving forward, the privilege applies in courts-martial without any exception based on an individualized assessment of the probative weight of protected communications to an accused’s defense is not, by our read, contrary to the Constitution. We come to this conclusion for five reasons.
First, we begin with a presumption of constitutionality. We must give effect to military rules of evidence issued by the President “unless lack of constitutionality is clearly and unmistakably shown.” United States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000) (citing Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998); United States v. Salerno, 481 U.S. 739, 745 (1987)). This presumption is even greater when, as here, the President acts pursuant to the express direction of Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–37 (1952) (Jackson, J., concurring) (noting that when the President acts pursuant to Congress’s express or implied authorization, “his authority is at its maximum,” and that an action “by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”).
Second, privileges by their very nature limit the truth-seeking function, so the fact that application of a privilege would deprive an accused of information that may be probative to his
The Supreme Court has already determined that the psychotherapist-patient privilege meets these requirements. In Jaffee, it held that “a privilege protecting confidential communications between a psychotherapist and her patient ‘promotes sufficiently important interests to outweigh the need for probative evidence . . . .’ ” 518 U.S. at 9–10 (quoting Trammel, 445 U.S. at 51) (emphasis added). “Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.’ ” Id. (quoting Trammel, 445 U.S. at 51). “The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Id. at 11.
Third, the policy decision to make the privilege applicable without case-by-case consideration of the purported importance of the information to an accused’s defense is consistent with Jaffee. There, the lower court had “qualified its recognition of the privilege by stating that it would not apply if ‘in the interests of justice, the evidentiary need for the disclosure of a patient’s counseling sessions outweighed that patient’s privacy interests.’ ” Id. at 7 (quoting Jaffee v. Redmond, 51 F.3d 1346, 1357 (7th Cir. 1995)). The Supreme Court rejected this “balancing component of the privilege,” stating:
Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. . . . [I]f the purpose of the privilege is to be served, the participants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege,
or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.”
Id. at 17–18 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981) (addressing the attorney-client privilege)).
In Kinder v. White, the United States Court of Appeals for the Fourth Circuit applied Jaffee in a criminal context. 609 F. App’x at 127–28. The district court had “concluded that an exception to the psychotherapist-patient privilege must be made where the privileged information is necessary to vindicate a criminal defendant’s constitutional rights.” Id. at 130 (cleaned up). Reversing, the Fourth Circuit explained, “In our view, this conclusion is demonstrably at odds with both Jaffee and basic principles underlying the recognition of testimonial privileges.” Id. It emphasized that “when the Court recognizes or expands a privilege . . . it necessarily has already determined that the privilege in question ‘promotes sufficiently important interests to outweigh the need for probative evidence.’ ” Id. at 131 (quoting Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990)). This is one of the most direct answers on this question from a United States Court of Appeals, and we find it compelling. See also United States v. Portillo, 969 F.3d 144, 182–83 (5th Cir. 2020) (rejecting contention that as a criminal defendant, Portillo’s constitutional rights to confrontation and due process override the privilege); United States v. Murra, 879 F.3d 669, 681 (5th Cir. 2018) (citing Kinder, 609 F. App’x at 131, with approval).
Fourth, we see no reason in law or logic to treat the psychotherapist-patient privilege as lesser than those applicable to communications to spouses, attorneys, or clergy. In Jaffee, the Court explicitly compared the psychotherapist privilege to the spousal and attorney-client privileges. 518 U.S. at 10. And in United States v. Clark, the CAAF compared it to the clergy-penitent privilege. 62 M.J. 195, 199 (C.A.A.F. 2005) (citing MCM (2000), app. 22, Analysis of the Military Rules of Evidence at A22-44). Yet those privileges are commonly viewed as not dependent on the content of the communications and how helpful it might be to an accused’s defense. As one district court judge put it: “Any court would make short work of an argument that the attorney-client privilege can be overcome by a criminal defendant’s cross-examination needs. The argument that the psychotherapist-patient privilege is only applicable when not
And as another said:
If a victim’s attorney or spouse had similarly privileged conversations with her that similarly might help a defendant’s cause if revealed, the confidentiality of those communications does not surrender to the defendant’s Sixth Amendment rights. If such were the law, what privilege could survive a defendant’s assertion of evidentiary need? Lawyers, spouses, even priests, presumably, could be ordered to cough up their notes or memories about the most private and confidential communications in the face of a subpoena from a defendant in a criminal case. The Jaffee Court makes it clear that the balancing test advocated by the defendant is not appropriate . . . .
United States v. Doyle, 1 F. Supp. 2d 1187, 1190 (D. Or. 1998).
Fifth, the rights invoked by Appellant—to confrontation and to present a complete defense—can be overcome by a properly recognized privilege. The right to present relevant evidence—even when already in an accused’s possession—“is not unlimited, but rather is subject to reasonable restrictions. A defendant’s interest in presenting such evidence may thus bow to accommodate other legitimate interests in the criminal trial process.” United States v. Scheffer, 523 U.S. 303, 308 (1998) (cleaned up) (holding that a military rule of evidence categorically excluding polygraph evidence does not unconstitutionally abridge an accused’s right to present a defense). As a result, the President has “broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Id. (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
In fact, the confrontation right might not even be implicated here.
Although CAAF has not yet had the opportunity to directly address the issue at hand, it has acknowledged that “in certain instances, the psychotherapist-patient privilege seemingly trumps an accused’s right to fully confront the accuracy and veracity of a witness who is accusing him or her of a criminal offense” and that “the debate on the confrontation issue is limited by the Supreme Court’s decision in Pennsylvania v. Ritchie . . . .” United States v. Beauge, 82 M.J. 157, 167 (C.A.A.F. 2022) (citing Ritchie, 480 U.S. at 53). It added:
Supreme Court precedent similarly limits Appellant’s due process argument. As the Court stated in Holmes v. South Carolina, only rules which “infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve” will be held to violate the right to present a complete defense.
Id. (quoting Holmes, 547 U.S. at 324–25).6
This brings us to a final point. It is true that CAAF previously concluded that removal of a “constitutionally required” exception had, in effect, no impact on its interpretation of
In light of all the above, we conclude that it does not. Once a military judge determines that none of the enumerated exceptions of
Applying that here, Appellant failed to show that the requested information met one of
2. Continuing In Camera Review and Redacting Protected Communications
Although the military judge ordered production of only non-privileged information contained in the mental health records, she directed that it first be subject to her in camera review prior to any disclosure. This was authorized under
Of course, as can almost be anticipated in these cases, an unauthorized breach is precisely what occurred. Commingled with the responsive records the military judge had ordered were nonresponsive, privileged communications. When this happens, one option for military judges to consider is to cease review and return the records to the custodian for strict compliance with the production order. B.M., 84 M.J. at 322 (Ohlson, C.J., concurring). Here, however, where individual, protected communications were interspersed throughout an otherwise unprivileged document, that may not have been practical. Nor was it, in our view, required. The military judge was not “examin[ing]” the communications for content or to determine if disclosure was required within the meaning of
If the military judge reviews any materials in camera, the entirety of any materials examined by the military judge shall be attached to the record of trial as an appellate exhibit. The military judge shall seal any materials examined in camera and not disclosed . . . . Such material may only be examined by reviewing or appellate authorities in accordance with R.C.M. 1113.
With this in mind, we continue our review of the military judge’s actions.
3. Whether Redacted Portions Were in Fact Confidential Communications
Based on the context of unredacted portions of the record, Appellant challenges that the redacted, undisclosed portions were confidential communications within the meaning of
Appellant is correct that under
But Appellant is incorrect in surmising that anything other than confidential communications was redacted. Having ourselves reviewed the sealed records in camera, we are
4. Whether Providers were “Psychotherapists” or “Assistants to Psychotherapists”
To be privileged under
Appellant, for the first time on appeal, asserts that the ER doctors and other care providers fail to meet these definitions. As discussed, because Appellant did not raise this issue below, he must demonstrate plain error to be entitled to relief.
We are aware of no military jurisprudence addressing whether ER doctors and other providers treating a patient for a mental health condition can meet these definitions under
For instance, in United States v. Ghane, 673 F.3d 771 (8th Cir. 2012), the Eighth Circuit declined to extend the federal psychotherapist-patient privilege to the consultations of the defendant with ER personnel. As in our case, the Ghane ER admission was precipitated by a mental health crisis. The statements at issue were made to a physician’s assistant (PA), who worked under the supervision of a (non-psychiatrist) attending ER physician. The Eighth Circuit focused on the content and context of the communications between the defendant and the PA:
The psychotherapist-patient privilege contemplates treatment. It does not encompass “care” provided by an ER physician’s assistant whose job is to assess incoming patients and conduct intake interviews and evaluations. . . .
Passing intake information along in a chart does not suffice as “treatment” sufficient to cloak these conversations with the privilege.
673 F.3d at 782, 784. See also, e.g., United States v. Ray, 585 F. Supp. 3d 445 (S.D.N.Y. 2022); E.E.O.C. v. Nichols Gas & Oil, Inc., 256 F.R.D. 114 (W.D.N.Y. 2009) (consultation with primary care doctor regarding depression, anxiety, or mental health referral not covered by psychotherapist-patient privilege).
A federal district court came to the contrary conclusion in United States v. Robinson, 5 F. Supp. 3d 933 (S.D. Ohio 2014). As in Ghane, the statements at issue were made by a criminal defendant during a crisis hospital admission for mental health symptoms. Explicitly rejecting the Ghane court’s approach, the judge in Robinson found the federal psychotherapist-patient privilege does extend to communications made to a crisis care nurse during admission: “Defendant was speaking to the nurse for the purpose of being admitted to receive treatment. As such, she had a reasonable expectation of confidentiality . . . .” 5 F. Supp. 3d at 939. “For the privilege to have meaning, it must extend to individuals engaged in admitting a patient for mental health treatment.” Id. See also, e.g., Finley v. Johnson Oil Co., 199 F.R.D. 301 (S.D. Ind. 2001) (extending the privilege to mental health consultations with primary care doctors and other generalists lacking specific psychiatric qualifications).
Here, we know the care team included two licensed emergency physicians and a psychiatric registered nurse, but because Appellant did not raise the issue below, the record is not further developed regarding their qualifications and practice areas. There is no military caselaw on point and at least some civilian courts confronted with similar fact patterns have accepted that statements made to ER staff may be subject to the psychotherapist-patient privilege. Under these circumstances, it is not plain or obvious that the military judge erred by making a similar judgment here. See United States v. Nieto, 66 M.J. 146, 151 (C.A.A.F. 2008) (Stucky, J., concurring) (“Error cannot be plain or obvious if the law is unsettled on the issue at the time of trial and remains so on appeal.”).
After receiving the redacted records, Appellant moved to compel production of the redacted portions. The military judge, after conducting a closed hearing and adhering to the procedures of
We conclude that this was not an abuse of discretion. As a general matter, the unauthorized disclosure of protected communications does not waive the privilege, and the non-disclosing privilege holder “can still assert the privilege and prevent the use of the confidential information in a legal proceeding.” United States v. McCollum, 58 M.J. 323, 339 (C.A.A.F. 2003) (addressing the spousal privilege) (superseded by rule on other grounds); see also, Alfaro, 2026 WL 407744, at *6.
We acknowledge that once an unauthorized disclosure has occurred, and a military judge has nonresponsive, privileged mental health records “dumped in her lap,” B.M., 84 M.J. at 322 (Ohlson, C.J., concurring), there might be extraordinary circumstances where information within a military judge’s possession is of such central importance to an accused’s defense that continuing with a trial without disclosing it to the accused would deprive him of a fundamentally fair trial. See, e.g., Morales v. Portuondo, 154 F. Supp. 2d 706, 730–31 (S.D.N.Y. 2001) (Chin, J.) (holding that evidence of previously disclosed communications of a person to his attorney that he and others, not the defendants, had murdered the victim were admissible because “its exclusion would render his trial fundamentally unfair. . . . Under these remarkable circumstances, the attorney-client privilege must not stand in the way of the truth.”).
But like the Supreme Court in Swidler & Berlin v. United States, we do not “need to reach this issue, since such exceptional circumstances clearly are not presented here.” 524 U.S. 399, 408 n. 3 (1998). Nothing in the redacted materials approaches such circumstances.
In sum, we conclude that the military judge correctly ensured that, consistent with the scope of the psychotherapist-patient privilege as defined by Congress and the President, protected communications were not disclosed and that this nondisclosure did not violate Appellant’s constitutional rights. We emphasize that although the President could have defined
Admissibility of Redacted Records
Having found no error in the military judge’s application of
We review a military judge’s decision to exclude evidence for an abuse of discretion. United States v. Maebane, 86 M.J. 173, 179 (C.A.A.F. 2025). “This abuse of discretion standard is a strict one, calling for more than a mere difference of opinion—the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. St. Jean, 83 M.J. 109, 112 (C.A.A.F. 2023) (quoting United States v. Hendrix, 76 M.J. 283, 288 (C.A.A.F. 2017)) (cleaned up).
Evidence is relevant “if it has any tendency to make a fact more or less probable than it would be without the evidence, and . . . the fact is of consequence in determining the action.”
Here, although Appellant disagrees with the result, the military judge fully articulated her reasoning for excluding the evidence under
Appellant urges, in particular, that he should have been permitted to present pages that indicated C.W. was a homicide risk. But the records were relevant to the extent they made it more likely that, during the charged event in 2022, C.W. was suicidal and therefore caused the injuries to herself. The annotation that C.W. supposedly presented in 2017 as some kind of homicide risk, therefore, had limited probative value and was substantially outweighed by the risk of unfair prejudice, confusing the issues, misleading the members, and—where the annotation was of questionable provenance and reliability and the point was certainly disputed—creating a “trial-within-a-trial” about whether C.W. was, in fact, ever a homicide risk.
Finally, much of the information not admitted was cumulative of information that was admitted—not just the ER records, but testimony from witnesses present at the events precipitating the 2017 ER visit. Giving due deference to the military judge’s articulated reasoning, we conclude that she did not abuse her discretion.
Appellant asserts that the military judge erred by failing to abate the proceedings under
The abuse of discretion standard calls for more than a mere difference of opinion, but instead occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.
Id. (quoting United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015)) (cleaned up).
Although “[e]ach party is entitled to the production of evidence which is relevant and necessary,” neither party is “entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process.”
However, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.
A party seeking redress under
Here, the Coast Guard Investigative Service (CGIS) investigated the crime scene at the Woods’ family home. They took hundreds of photographs, conducted three-dimensional imaging of the scene (known as a “FARO scan”), and collected blood swabs and numerous items deemed
The home, which was aboard a military housing area, was managed by a private company, Island Palms Communities, LLC, and Appellant was the only person on the lease. After CGIS released the scene, C.W.’s mother and a friend who were helping prepare the home for C.W.’s return from the hospital cleaned it, primarily using bleach and water. Island Palms then conducted a biohazard cleanup, which included removing and disposing of the mattress from the master bedroom.
The military judge concluded that the destruction of the evidence did not constitute a violation of
Appellant now asserts that granting an expert consultant in FARO scans was an inadequate remedy for an
First, granting the expert consultant was not a remedy for a violation of
Second, her conclusion that there was no
Because the military judge properly concluded there was no violation under
Decision
We determine that the findings and sentence are correct in law and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as entered into the record, are affirmed.
Judges McCLELLAND and PARKER concur.
For the Court,
Sarah P. Valdes
Clerk of the Court