This is it. Today is the big day.

The Military Justice Improvement & Increased Prevention Act will be introduced by Senators Gillibrand and Ernst. Our President Col. Don Christensen, USAF (ret) will be speaking at a press conference with the senators at 11 AM Eastern.

Then at 1:40 PM Eastern, we’re hosting a live Zoom call from Capitol Hill (register now!). We’ll be joined by the bill’s lead author Senator Gillibrand, survivors and other guests. Together, we’ll unveil our community advocacy plan to pass this bill and answer your questions. We’re going to need everyone’s help. Momentum is on our side. We can do this!

A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, of one specification of absence without leave (AWOL) and one specification of wrongful appropriation. The convening authority approved Appellant’s adjudged sentence of a reprimand, confinement for three months, and dismissal from the service. The United States Army Court of Criminal Appeals (CCA) affirmed the findings and only so much of the sentence as provided for confinement for three months and a reprimand.

​We granted review on the following issue: Whether Appellant received effective assistance of counsel when he was erroneously advised that his pending resignation request, if approved, would vacate his guilty plea. United States v. Furth, 80 M.J. 319 (C.A.A.F. 2020) (order granting review). We assume without deciding that trial defense counsel’s performance was deficient, but conclude that Appellant has failed to establish prejudice. We therefore affirm the lower court’s decision that there was no ineffective assistance of counsel in this case.

Elizabeth M. Berecin

Managing Editor

​Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.

When Mr. Greer was charged with, tried on, and convicted of possessing a firearm as a convicted felon, unanimous circuit precedent held that knowledge of one’s status as a person prohibited from possessing a firearm was not an element of 18 U.S.C. § 922(g). At trial, therefore, the government did not submit evidence or argue to the jury that Mr. Greer knew his status at the time of the offense, and the jury made no finding on that issue. While Mr. Greer was on direct appeal, this Court overturned the unanimous circuit precedent and held that such knowledge is an essential element. Rehaif v. United States, 139 S. Ct. 2191, 2197 (2019). The Eleventh Circuit affirmed Mr. Greer’s conviction on plain-error review. J.A. 116–22. By considering materials outside the trial record—materials that were never admitted into evidence nor presented to the jury—the Eleventh Circuit decided in the first instance what a jury “could have” found as to the knowledge-of-status element. Id. at 121. Mr. Greer challenges that novel approach to appellate review.

​A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence.

​The question presented is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause. 

Federal and state courts are deeply divided over the question presented..

A. Three jurisdictions hold that criminal defendants never “open the door” to the admission of evidence that is otherwise barred by the Confrontation Clause.

B. Five jurisdictions hold that defendants “open the door” to testimonial hearsay when they introduce a testimonial statement by the same declarant.

C. Three jurisdictions hold that defendants “open the door” to testimonial hearsay whenever they create a “misleading” impression at trial.

Elizabeth M. Berecin

Managing Editor

​A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specification of indecent recording, in violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for seven months, and reduction to the grade of E-1. Consistent with the pretrial agreement, the convening authority approved the portion of the sentence extending to a bad-conduct discharge, confinement for 180 days, and reduction to the grade of E-1.

Michel Paradis

LOAC Editor

At trial, the Government sought to introduce the following four statements for the truth of the matter asserted, under the excited utterance or present sense impressions exceptions to the rule against hearsay:

       (1) JH’s statement to SSG DC: “He’s beating my mom. He’s beating my mom.”

       (2) JH’s exclamation: “You better not hit her again.”

       (3) KH’s statement to SSG DC: “He hit me. He hit me.”

     (4) KH’s statement to the 911 operator that her husband had “been beating me for the last couple of hours.”

In an Article 39(a) session on the admissibility of these statements, KH testified for the defense. She stated that she had told JH to run over to SSG DCs house and tell him to call 911, and she lied when she told SSG DC that the accused had beaten her. At the Article 39(a) session, the military judge denied the admission of the statements as exceptions to hearsay or under the residual hearsay exception. He did not make a finding that KH’s recantation was at all credible, nor did he reference it his ruling.

​Since the military judge based his ruling on an incorrect view of the law—requiring proof of personal knowledge and considering each statement in isolation—and a view of the facts that leaves us firmly convinced that a mistake was committed—that there was no evidence as to when the assault occurred or that JH could have observed it—we hold that he abused his discretion by excluding the four statements of JH and KH. 

Brenner Fissell

EIC