Military Judge strikes alleged sexual assault victim’s testimony due to government’s negligence in losing the Article 32 recording.

Sometimes the outcome of a court-martial is dramatically altered by an administrative error.  Sometimes the Government makes an error that can lead to the evidence against an accused either falling apart or disappearing altogether.  Recently, the United States Army Court of Criminal Appeals (ACCA) in U.S. v. Muwwakkil upheld a military judge’s decision to completely strike the testimony of an alleged sexual assault victim.  Striking the testimony of the alleged victim in a sexual assault court-martial, may mean that there will not be enough evidence against the accused to continue with his prosecution.  In that court-martial, the Government somehow negligently deleted major sections of the alleged victim’s testimony provided at the Article 32 hearing.  Therefore, when it came time to provide the defense with a verbatim recording of the alleged victim’s testimony in accordance with Rule for Courts-Martial (R.C.M.) 914, the Government was unable to do so.  This violation of R.C.M. 914 is also commonly called a violation of the Jencks Act.  This deletion of the Article 32 testimony was harmful to the case of the accused because the victim made some statements during her direct testimony at the court-martial that were inconsistent with some of the statements made at the Article 32 hearing.  However, without the recording of her Article 32 hearing, the defense would not be able to adequately show her inconsistencies during the cross examination of the victim.  The military judge decided that while the Government’s deletion of the testimony was not done maliciously or purposefully, it was negligent.  Due to the harm to the accused, the military judge decided to strike the entire direct examination provided by the alleged victim at the court-martial.  The Government stopped the court-martial and immediately appealed the military judge’s decision to ACCA.  ACCA decided that the military judge did not abuse her discretion and upheld her decision to strike the testimony.  It is unclear whether or not the loss of this testimony will mark the end of the Government’s case against the accused, but it is certainly possible for obvious reasons.  If you or your loved one is facing a court-martial, you need an experienced advocate by your side who knows what objections to make and when.  You need to feel confident in your attorney as you face this major event in your life.  Call me today, I can help.   To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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