30 August 2010

Army Lawyer Article

Here is a link to my article recently published by the Army Lawyer.  I know that some may disagree with my opinion.  However, this article is designed to provoke discussion on a topic that the CAAF obviously is taking its time to consider. 

11 August 2010

Stipulations and Confessional Stipulations

In any given court-martial, there may be good reasons to enter into a stipulation or a less-often-used confessional stipulation.  Normally, stipulations are entered into to save the time and expense of direct proof by presenting to the fact finder agreed versions of either a fact, a document, or a witness' testimony.  This entry is designed to give some very basic background information to counsel and clients alike regarding this topic.

Stipulations In General:  In general the parties may make an oral or written stipulation to any fact, the contents of a document, or the expected testimony of a witness.  However, the military judge may, in the interest of justice, decline to accept a stipulation. 

Before accepting a stipulation in evidence, the military judge must be satisfied that the parties consent to its admission.  Therefore, the military judge will undoubtedly cover the contents and nature of the stipulation with counsel and the accused.  During this process, a party may withdraw from an agreement to stipulate or from a stipulation at any time.  However, after a stipulation has been accepted a party may withdraw from it only if permitted to do so in the discretion of the military judge.

Stipulations of Fact:  Unless properly withdrawn or ordered stricken from the record, a stipulation of fact that has been accepted is binding on the court-martial and may not be contradicted by the parties.  If the stipulation of fact is contradicted, the military judge will be required to resolve the discrepancy or reject the stipulation of fact.

Stipulations of Expected Testimony or of a Document's Contents:  The contents of a stipulation of expected testimony or of a document's contents may always be attacked, contradicted, or explained in the same way as if the witness had actually so testified or the document had been actually admitted.  The fact that the parties so stipulated does not admit the truth of the indicated testimony or document's contents, nor does it add anything to the evidentiary nature of the testimony or document.  Likewise, the Military Rules of Evidence apply to the contents of stipulations.  Thus, counsel may object to hearsay or foundational issues. 

When offered, a written stipulation shall be presented to the military judge and shall be included in the record whether accepted or not.  Once accepted, a written stipulation of expected testimony is normally read to the members, if any, but is not presented to them.  In this regard, it is similar to if the witness had actually testified.  A written stipulation of fact or of a document's contents may be read to the members, if any, presented to them, or both.  Once accepted, an oral stipulation shall be announced to the members, if any.

Here are some general do's and don'ts  for stipulations of fact:

(1) Stipulate to FACTS in a stipulation of fact. Any stipulation including wording such as "the accused would say" or "agent Smith would say" belong in a stipulation of testimony.  A stipulation of fact should contain only clear, provable facts.  To mix a stipulation of testimony into it -- even with such prefatory language -- confuses the trier.  A stipulation of fact "is nothing more than a consensual agreement by prosecution, defense, and accused that stipulated facts may be considered by the court as if competent evidence establishing those facts had been introduced at trial." 
(2) Stipulate only to TESTIMONY in a stipulation of expected testimony.  This is simply what the witness "would say if called and sworn as a witness."  Nothing more.  If it's really what he would say -- and it's admissible -- let it go.  Do not insert into the stipulation references to facts that may contradict it. Trust the trier to examine all of the evidence (helped by your argument) at the close of the case.

(3) Stipulations of fact may not be contradicted. Here, counsel are stipulating that certain items are true, not just provable. To contradict them -- by argument or otherwise -- invalidates the stipulation.

(4) Stipulations of testimony may be contradicted. Think of them as equivalent to all other testimony in the case; the witness just happens to appear on paper rather than in person.  Remember, you are stipulating only that this is what the witness would say, not that it is true.  Hammer at this point in argument and with contrary evidence when a stipulation hurts your case.

(5) Use stipulations aggressively:

To dispose of elements for which proof would be easily achieved by the government, distract from your defense theory or cumbersome (short of a confessional stipulation).  If the defense's theory simply is entrapment and not the nature of the contraband, you may want to suggest a stipulation of fact that, for example, the seized drug was cocaine and that it weighed 4.5 grams.  This saves the time of an expert to explain the testing procedure, the time of one or more agents to describe the seizure and to establish the chain-of-custody.  This can build good will with the government regarding other issues of the case.  Additionally, the defense gains as well, by focusing the panel or judge only on the elements in question.  There are many examples of matters for which stipulations save time and money without forfeiting the drama or impact of in court proof:
   -That the victim is dead.
   -That the victim was less than 16 years old.
   -That the stolen items were worth more than $100.
   -That the accused wrote the checks in question.
   -That the theft occurred on a certain date.
   -That the accused has spent a certain number of days in pretrial confinement. 
   
(6)  Don't quibble unnecessarily over defense stipulations of testimony.  If agreeing to a former supervisor's endorsement of the accused spares the time of litigating his personal appearance and avoids the costs of bringing him/her if you lose go ahead and agree to it.  Remember the big picture when you are negotiating; sometimes a defense counsel has to insist on a certain witness to please her client and keep a favorable deal on track.


Confessional Stipulations:

A confessional stipulation is a document, offered on the merits after a not guilty plea, in which the accused admits to all of the elements of the crime.  Or, it may be used as part of a guilty plea to supplement, not contradict, a stipulation of fact.  I have done this in situations where the government wanted a very plain stipulation of fact for a guilty plea.  Unlike other stipulations, a confessional stipulation does not require the consent of the government.  In this regard, you can put the surrounding facts that elaborate on the stipulation of fact and assist the client in getting through the providence inquiry. 

A confessional stipulation is "a stipulation which practically amounts to a confession. . . . [A] stipulation can be said to amount 'practically to a judicial confession when, for all facts and purpose, it constitutes a de facto plea of guilty, that is, it is the equivalent of entering a guilty plea to the charge."  United States v. Bertelson , 3 M.J. 314, 315 n.2. (C.M.A. 1977).

Because a confessional stipulation becomes the equivalent of a judicial confession, the judge must conduct a searching inquiry -- equivalent to a providence inquiry -- to insure that the accused signed the document in a knowing, voluntary and intelligent act and that he understands the stakes (that he's in effect pleading guilty).  If a stipulation, regardless of its title, amounts to a confessional stipulation, the military judge must perform a Bertelson inquiry.  If she does not do so, the case may well be reversed on appeal.  United States v. Honeycutt, 29 M.J. 416, 419 (C.M.A. 1990) (judge failed by not inquiring when it was clear that "appellant could have been found guilty upon his stipulation alone").  See also United States v. Cantu , 30 M.J. 1089, 1089 -90 (N.M.C.M.R. 1989); United States v. Kepple , 27 M.J. 773 (A.F.C.M.R. 1988), aff'd , 30 M.J. 213 (C.M.A. 1990).

If you have any questions regarding stipulations, feel free to contact me.