In United States v. Ayala, published this week, the CAAF ducked the question presented about the admissibility of pretrial statements as prior consistent statements under Mil. R. Evid. 801. Should they have?
In cases addressing nonconstitutional evidentiary errors, the court asks whether the judge made a legal error in admitting or excluding evidence under an abuse of discretion standard of review. United States v. Humphreys, 57 M.J. 83, 90 (C.A.A.F. 2002). This meta-analysis comes in two parts: was there error, and is there prejudice?
First, did the military judge err. To err means the military judge “abused his discretion.” A military judge may abuse his discretion in one of three ways: (1) the findings of fact are clearly erroneous (the Court has described a test for this: findings of fact are “clearly erroneous” when the reviewing court “is left with the definite and firm conviction that a mistake has been committed” (United States v. Martin, 56 M.J. 97, 106 (C.A.A.F. 2001)); or (2) the military judge had an erroneous view of the law, or (3) the military judges' decision was outside the range of choices reasonably arising from the pertinent facts and the law. United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013). Admittedly (no pun intended), there are many algebraic variables here that need to be replaced by facts, and thus some traditional legal analysis is required. But that is not the end of the problem.
The second part of the meta-analysis considers the question of “prejudice”: if the judge erred, whether that error had a particularized relevant effect on the case. Expressly, the court will not grant relief to the appellant unless the error “materially prejudices the substantial rights of the accused.” 10 U.S.C. § 859(a). Ayala’s appeal failed on this second prong. The Court explains that “the test for prejudice is “whether the error had a substantial influence on the findings.” United States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019). The prejudice prong requires weighing four individual non-dispositive but relevant factors: (a) the strength of the Government’s case, (b) the strength of the defense case, (c) the materiality of the questioned evidence, and (d) the quality of the evidence in question. Many variables to decode here too, but the answers are less factual and more qualitative and interpretative.
With this background, it is understandable why the majority put the horse before the cart. The baggage load may have been weighty, but the horse named No Prejudice could still pull it through the gate. However, the case also raises a question about CAAF’s jurisprudential scope and purpose. Judge Maggs’ concurrence takes us to that question of which comes first.
Here the majority went straight to the prejudice analysis and deliberately shied away from the algebraic determination of whether the judge erred in admitting evidence of alleged prior consistent statements under M.R.E. 801(d)(1)(B)(i) and (ii). The majority then took a view consistent with the requirement that a court may only grant relief for an error,
“[if] the error materially prejudices the substantial rights of the accused.”
See Article 59, UCMJ, 10 U.S.C. § 859.
The majority observed that “Based on the record before us, it is not necessary to decide whether or not the military judge erred in admitting the exhibits at issue. Regardless of any error "we conclude there is no prejudice.” Slip op., at 8.
Judge Maggs, however, seems to suggest that it may be flawed appellate practice to skip right past making the prejudice determination on the first part of the analysis – whether there was a legal error at all – when the second part of the analysis – the more ambiguously subjective, qualitative, and normative question of whether there was prejudice – can be answered in the negative.
In my view, addressing the issue of admissibility – which is properly before us – is a higher priority here than deciding the issue of possible prejudice because the issue of admissibility appears to have caused some confusion at trial and because cases involving allegations of coaching are not uncommon.
(Maggs, J., concurring, slip op. at 2 [emphasis added)).
Thus, we should ask: is it always the case in such reviews (nonconstitutional evidentiary errors) that the CAAF must answer the first part first before addressing the second? This, after all, seems logical.
Judge Ohlson in United States v. Norwood seems to be of a similar mind.
To begin with, I believe the majority is remiss in not squarely acknowledging that the military judge was wrong in applying the provisions of M.R.E. 801(d)(1)(B)(ii) to a key facet of this case. Specifically, the military judge ruled that because defense counsel had implied that the victim's in-court testimony was the product of improper prosecutorial coaching, M.R.E. 801(d)(1)(B)(ii) applied to the question of whether a videotape of the victim's prior statement to forensic investigators was admissible at trial. As demonstrated below, the military judge was clearly mistaken about the applicability of this particular provision, and the majority should affirmatively concede this point.
United States v. Norwood, 80 M.J. ___, 2021 CAAF LEXIS 204, at *21 (C.A.A.F. Feb. 24, 2021) (Ohlson, J., concurring in the result). Norwood is a teaching moment for counsel and military judges. Id., at *31 (Sparks, J., concurring in part and dissenting in part) (“I also agree with the majority's admonition to defense counsel and military judges generally.”).
The only reasonable argument for going to the prejudice analysis is to preserve judicial economy: if you suspect that no relief can be forthcoming because the harm (if any) did not “materially prejudice the substantial rights of the accused,” then on the grounds of “not wasting our time” the Court seems privileged to say that no answer to the first prong of the analysis matters anyway. But would it be “wasting our time” or “wasting the Court’s time” for the Court to engage in the analytical work step-by-step, in the same way, that a twelve-year-old son is made to write out in long-hand his math homework answers, even if he can answer the question in his head?
The answer, we think, has to be it is no such waste of time or energy when we consider Judge Maggs’ reasons for his “prioritization” of the admissibility problem: the underlying question that may have befuddled the trial judge and parties “appears to have caused confusion at trial” and the factual context that leads to the original objection (here, “allegations of [prosecution] coaching” the victim or other witness) “are not uncommon.”
Ask around and you should be told that sex offense allegations dominate the trial docket. And arguably the appellate docket—all but three of CAAF’s last term opinions involve sex offenses.
Mil. R. Evid. 801 is one of the most common and consequential rules of evidence in sex offense cases. The credibility and reliability of the complaining witness’s testimony is often central to the case—and is at its apogee when it is a she said/he said case without witnesses or corroborating evidence.
In the early days of the exception, it was common for trial counsel to offer the full pretrial interview and for many judges to allow admission of that. Thus, the exception swallowed the rule. As Ayala suggests the problem remains. CAAF’s interpretation of Mil. R. Evid. 801 is thus important to practitioners in the field for the foreseeable future.
The jurisprudential scope and purpose problem might be stated this way: in such cases (e.g., Ayala), the C.A.A.F. interprets Article 59’s commandment – “a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused” – to reduce the scope of Article 67’s subject-matter jurisdiction: “the [C.A.A.F.] shall take action only with respect to matters of law.” The reduction, in cases like Ayala, means that the Court need not bother “show its work” in the more algebraic part one of the analyses (was there an error?) when the answer can – qualitatively and subjectively – be answered as “no prejudice”? This, in adverse consequence to the bench below and to the bar, means effectively “no harm, no foul,” for we still do not know – as in Ayala’s case – whether the trial judge correctly applied his discretion to admit evidence under his interpretation of the relevant law.
Unfortunately, there is not quite a straightforward conflict between Article 59 and Article 67. One does not necessarily contradict the other. The issue, though, is whether in faithfully adhering to Article 59, the CAAF is missing the point – or spirit – of its purpose under Article 67. Ultimately, this issue might be cabined by the following questions:
(1) Did Congress intend the CAAF to “educate” the lower bench and bar by answering such recurring and difficult legal questions, as Judge Maggs seems to suggest?
(2) If not, what would it cost the CAAF to assume that obligation voluntarily. Their caseload suggests that they may have the time. 
(3) Did Congress intend and expect the other federal courts of appeals to elide past difficult analyses when the answer can be arrived at more intuitively or qualitatively – the “no harm, no foul” technique when the difficult “foul” question is the first part of the process?
(4) If the other federal courts are not expected to educate the bench and bar below on such questions, does that necessarily mean CAAF should not either when CAAF is based on the requirements of 28 U.S.C. § 1259 and its narrow relationship with the Supreme Court – effectively the court of last resort for issues arising in military justice? This is perhaps answerable after the Supreme Court’s decision in Ortiz and its full endorsement of CAAF as sitting atop the “integrated court-martial system” in the same way that Article III superior courts do.
 The writers are well aware there are many other matters requiring court action that occur in the background or are not always publicly noticed.
by Dan Maurer (writing in his personal capacity) and P.C.
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