United States v. Matthews

UNITED STATES, Appellee

v.

Christopher J. MATTHEWS, Specialist
U.S. Army, Appellant

No. 08-0613

Crim. App. No. 20030404

United States Court of Appeals for the Armed Forces

Argued April 14, 2009

Decided July 23, 2009

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.

Counsel

For Appellant: Earle Partington, Esq. (argued); Captain Melissa
Goforth Koenig (on brief); Major Bradley M. Voorhees, Captain
Teresa Lynn Raymond, and Captain William Jeremy Stephens.

For Appellee: Captain Elizabeth A. Walker (argued); Colonel
Denise R. Lind, Lieutenant Colonel Francis C. Kiley, and Major
Christopher B. Burgess (on brief); Major Larry W. Downend.

Military Judge: Theodore E. Dixon

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Matthews, No. 08-0613/AR

Judge BAKER delivered the opinion of the Court.

Appellant entered mixed pleas before a military judge

sitting alone as a general court-martial. He was convicted of

one specification of assault upon a noncommissioned officer with

intent to cause grievous bodily harm, in violation of Article

128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928

(2000), and two specifications of wrongfully using cocaine, in

violation of Article 112a, UCMJ, 10 U.S.C. § 912a (2000). The

military judge adjudged, and the convening authority approved, a

sentence consisting of a bad-conduct discharge, confinement for

eleven months, reduction to the grade of E-1, and forfeiture of

all pay and allowances. On initial review, the United States

Army Court of Criminal Appeals (CCA) ordered an evidentiary

hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37

C.M.R. 411 (1967) (DuBay hearing). United States v. Matthews,

No. ARMY 20030404, slip op. at 6-7 (A. Ct. Crim. App. July 14,

2006) (Matthews Order). Following the DuBay hearing, the CCA

affirmed the findings and sentence. United States v. Matthews,

66 M.J. 645, 653 (A. Ct. Crim. App. 2008).

The issue granted asks:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES
NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE
FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DUBAY HEARING
AS TO HIS DELIBERATIVE PROCESS.

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The issue implicates not only the meaning of Military Rule of

Evidence (M.R.E.) 509, but also the broader question of when, if

at all, it is appropriate for military judges to testify

regarding their deliberations. After a review of M.R.E. 509,

and consistent with M.R.E. 101 and federal common law, we

conclude that with limited exception, not applicable here, the

deliberative processes and reasoning of courts-martial military

judges are protected from post-trial inquiry. The CCA therefore

should not have considered the trial military judge’s DuBay

hearing testimony in this case to the extent it revealed his

deliberative process. We remand this case to the CCA for

reconsideration of the DuBay record in a manner consistent with

this opinion.

BACKGROUND

The charges against Appellant originate from events that

transpired at Appellant’s on-post home, where he lived with his

wife. On the day in question, Sergeant (SGT) Brian Freeman, an

acquaintance of Appellant and Mrs. Matthews, visited the

Matthews’ home. Mrs. Matthews informed SGT Freeman that

Appellant wished to speak with SGT Freeman inside the house.

Upon entering the house, SGT Freeman noticed
there were two other men in the kitchen; both were
wearing battle dress uniforms without name tags.
Although he did not know their identities at the time,
they were [then] [Staff Sergeant] SSG James Gibson and
Private First Class (PFC) Pedro Lozada III. Appellant
began questioning SGT Freeman in the living room about

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whether SGT Freeman was facilitating [Appellant’s
wife’s] affair with another soldier. . . . [SGT]
Freeman denied knowledge of an affair.

Appellant then pulled out a handgun from under
the couch in the living room and inserted a loaded
magazine. As SGT Freeman became frightened and turned
to run through the kitchen, SSG Gibson and PFC Lozada
grabbed SGT Freeman and pushed him back into the
living room. Appellant then pistol whipped SGT
Freeman from behind, and SGT Freeman heard what he
believed to be a gunshot. Two of [A]ppellant’s
neighbors also heard a gunshot. . . . While SGT
Freeman was on the floor with his head bleeding,
[A]ppellant held the handgun to his head. With PFC
Lozada and SSG Gibson beside him, [A]ppellant
continued to threaten SGT Freeman and demanded he tell
him what he knew of [his wife’s] infidelities.
Hearing the sirens of approaching military police
(MP), [A]ppellant told SGT Freeman to hide in the
bathroom. [SGT] Freeman did so for a few moments but
fled the house at the first opportunity.

Matthews, 66 M.J. at 646 (footnote omitted and first alteration

in original).

I. Trial

At trial, Appellant called PVT Gibson as a witness.1 As the

CCA explained, PVT Gibson’s invocation of his right against

self-incrimination in response to questions by trial counsel at

the court-martial formed the basis for Appellant’s appeal to the

lower court:

During cross-examination, trial counsel asked PVT
Gibson a series of questions, which could have
elicited potentially inculpatory and self-

1
“Private James Gibson was a staff sergeant (SSG) at the time
the offenses were committed. Following UCMJ action prior to
[A]ppellant’s trial, [Gibson] was reduced in rank from staff
sergeant to private.” Matthews, 66 M.J. at 646 n.1.

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incriminating responses. The questions pertained to
PVT Gibson’s previous misconduct [and] were unrelated
to the offenses underlying [A]ppellant’s trial. [PVT]
Gibson refused to answer these questions and invoked
his Fifth Amendment privilege against self-
incrimination thirteen times by stating, “I'll take
the Fifth Amendment.”

Based upon PVT Gibson’s invocation, trial counsel
requested to have him excused and his testimony
stricken from the record. Although trial counsel
asserted that she could not conduct a meaningful
cross-examination of PVT Gibson, the military judge
summarily denied the request. Despite PVT Gibson’s
repeated invocation of his Fifth Amendment privilege
-- matched by as many objections from civilian defense
counsel -- the military judge allowed trial counsel to
continue with her line of questioning.

The military judge also permitted trial counsel
to comment on PVT Gibson’s invocation of his Fifth
Amendment privilege against self-incrimination during
her rebuttal argument on findings.

. . . .

Although civilian defense counsel objected to
trial counsel’s comments, the military judge
subsequently ruled that such comments were permissible
based on the “interests of justice” exception to Mil.
R. Evid. 512(a)(2).

Matthews, 66 M.J. at 647 (footnote omitted).

After the military judge announced his findings on the

record, he made the following additional comments:

MJ: For purposes of any appellate review of this
case for factual sufficiency, the court had the
opportunity to evaluate the credibility of each
witness and considered each witness’s ability to
observe and accurately remember, sincerity,
conduct in court, friendships, prejudices, and
character for truthfulness. The court also
considered the extent to which each witness was
supported or contradicted by other evidence, the

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relationship each witness had with the other
side, and how each witness might be affected by
the verdict.

In weighing a discrepancy by a witness and
between witnesses, the court considered whether
it resulted from an innocent mistake or a
deliberate lie.

After taking all these matters into account, the
court then considered the probability of each
witness’s testimony, and the inclination of each
witness to tell the truth. Based on the
foregoing, the court finds beyond a reasonable
doubt that [PVT] Lozada, [PVT] Gibson, and Mrs.
Matthews were untruthful in their testimony. The
court further finds that these witnesses had
every opportunity to, and did, collaborate to
falsely testify in this case, motivated by
obvious individual self-interest.

Id. at 647-48.

II. United States Army Court of Criminal Appeals Order

Appellant thereafter appealed to the CCA, asserting that

“the military judge erred by allowing trial counsel to comment

upon PVT Gibson’s invocation of the right against self-

incrimination, and therefore, improperly drew an adverse

inference from those comments.” Matthews Order, No. ARMY

20030404, slip op. at 3. In addition, Appellant submitted

affidavits from civilian defense counsel, trial defense counsel,

and Appellant’s father, each asserting that the military judge

stated reasons off the record for why he did not believe PVT

Gibson. Id. The Government countered by submitting an

affidavit from trial counsel, who asserted that the military

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judge “‘never made the comments that [A]ppellant alleges.’” Id.

at 4.

On July 14, 2006, the CCA ordered a DuBay hearing to

determine, in relevant part:

a. Whether the military judge properly applied Mil.
R. Evid. 512(a)(2) by allowing trial counsel to
comment on PVT Gibson’s invocation of the right
against self-incrimination in her rebuttal argument on
findings.

b. What, if anything, did the military judge say
concerning PVT Gibson’s credibility in light of PVT
Gibson invoking the Fifth Amendment right against
self-incrimination?

Id. at 6. The CCA also ordered:

3. That the DuBay military judge . . . permit the
presentation of witnesses and evidence, make rulings
as appropriate, and enter findings of fact and
conclusions of law concerning whether the military
judge: (1) made any comment regarding PVT Gibson’s
invocation of his Fifth Amendment right against self-
incrimination, and/or (2) drew any adverse inference
that the invocation made PVT Gibson less credible[.]

Id. at 7.

III. DuBay Hearing

The Government called the military judge who presided over

the original court-martial to testify at the DuBay hearing.

Neither party nor the DuBay judge nor the trial judge objected

to this testimony. Both parties and the DuBay judge posed

questions to the trial judge. The following excerpts are

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representative portions of the trial judge’s testimony at the

DuBay hearing:2

[Trial counsel (TC)]: Now how would you characterize
the interests of justice here?

[Trial military judge (TMJ)]: . . . I was very
concerned about the potential prejudice to Matthews if
I were to make rulings different than what I had made.
I wanted the defense to be able to present their case
in whatever fashion they believed that they should
present their case. However, I am a firm believer
that justice works both ways. The government is
entitled to a fair trial as well as the accused.
Under these conditions, with the sequence of events,
the government was entitled to make that legal
argument . . . . I decided that she was entitled,
[trial counsel] that is, to make that argument,
whether I drew the inference or not, it was an
arguable inference that the court was permitted to
draw.

. . . .

[TC]: So you didn’t state at that time, that you
would draw a negative inference?

[TMJ]: Although I believe then, and I believe now,
that the inference could be drawn by the court under
these circumstances, I didn’t make any comment that I
was going to draw an inference. That is something
that judges just don’t do. So I would not have told
them that I am actually going to draw the inference.
That was before findings had been announced.

. . . .

[Defense counsel (DC)]: And with knowing that there
were some credibility issues related to Private

2
The excerpts from the trial military judge’s DuBay testimony
and the DuBay military judge’s findings of fact and conclusions
of law cited in the Court’s opinion are illustrative of the type
of testimony elicited and the effect such testimony had on the
DuBay military judge’s findings of fact and conclusions of law.
They are not exhaustive.

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Gibson, did that in any way impact how you believed
his credibility was when he got on the stand?

[TMJ]: No. His testimony, as I stated earlier, was
in direct opposition to other testimony, other
evidence presented to me. It was so far in contrast,
that I didn’t believe him during his direct
examination. In other words, what he testified to,
that was being elicited by the defense, was not
credible in and of itself.

. . . .

[DuBay military judge]: Okay. So by invoking the
exception of M.R.E. 512 in the interest of justice,
how would you describe the interest of justice that
you were seeking to pursue?

[TMJ]: Because all of my rulings and all of my
decisions as it related to how to proceed with
[Private] Gibson’s testimony, in light of what had
occurred, were very defense oriented, very defense
favorable, I wanted to ensure that Specialist Matthews
was able to present the evidence as his attorneys
wanted to present [it]. So, I made my rulings
consistent with that approach to this particular
issue. All of those rulings were designed to allow
[Private] Gibson’s direct examination. Because I
didn’t want to delay the trial for an immunity order.
I didn’t want to give the government the advantage of
me ordering [Private] Gibson to testify,
notwithstanding the fact that he invoked, which, to be
quite honest, I had not researched that aspect of the
issue and neither side had briefed the issue of
whether a court-ordered response by the witness would
provide in any type of immunity. So I elected not to
use that option as well. So, all of the options that
I chose, either to elect or not elect, were designed
to ensure that Specialist Matthews was able to present
the evidence that he wanted to present. When it came
to the argument of counsel, however, that is where I
evened the playing field, so to speak. It was a
legitimate, in my mind, a legitimate legal argument
that she should have been able to make, whether or not
the court could draw the inference or whether the law
would allow them to draw the inference, it was a
comment which the rules specifically address, that I

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believe that the interest of justice, under the
circumstances, would allow. It has sort of evened the
playing field based on the circumstances in this case,
so.

. . . .

[DC]: Sir, do you think that the government was
allowed to unfairly benefit from a poorly drafted
immunity order, by asking questions that they know
would not be covered by that immunity order?

[TMJ]: I believe the government’s presentation of
their cross-examination of Gibson was severely
hampered, because they were not permitted to get
responses that would otherwise directly go to
[Private] Gibson’s credibility. That was the result
of the poorly drafted immunity order. As this was a
judge alone case, there was no specific danger of
unfair prejudice to the accused of the government’s
rebuttal argument. Since I did not draw the inference
requested, there was no prejudice to the accused,
Specialist Matthews, as it relates to that argument.
So, did the government unfairly benefit? No. The end
result is that they did not unfairly benefit by my
rulings.

Based on the testimony presented at the DuBay hearing, the

DuBay military judge made the following findings of fact:

18. At the fact-finding hearing, the Military Judge
for the first time explained his rationale for
invoking MRE 512’s interest-of-justice exception. His
intent was to ensure a fair trial for both sides. He
was primarily concerned that appellant not be deprived
of the benefit of Private Gibson’s material, favorable
evidence because government attorneys had drafted an
in-artful grant of immunity for Private Gibson and had
not co-ordinated that grant of immunity with the U.S.
Attorney prior to trial. Accordingly, he decided not
to invoke the remedy of striking Private Gibson’s
direct testimony, favorable to appellant, upon
invocation of the privilege upon trial counsel cross-
examination because he did not want the government to
benefit from its own errors. Because he had not
invoked the remedy of striking the direct testimony,

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he allowed assistant trial counsel to argue the
invocation of the privilege in the interest of
justice. It was a lesser remedy than striking the
direct testimony, thereby ensuring both that appellant
received the benefit of Private Gibson’s testimony and
that the government had an opportunity to be heard as
well regarding the matter of credibility. In his
determination that the interests of justice indicated
consideration of assistant trial counsel’s argument
regarding Private Gibson’s invocation of his
privilege, the Military Judge was aware that the
privilege invocation deprived the government of
significant impeachment evidence regarding Private
Gibson’s credibility.

19. When rendering findings, the Military Judge
specifically found that Private Lozada, Private
Gibson, and Mrs. Matthews were untruthful in their
testimony and that they had collaborated in their
false testimony. He determined this from the sharp
contrast in the testimony between government witnesses
whom [sic] he determined were credible and these
defense witnesses, and the way in which these defense
witnesses testified consistent with each other
regarding significant matters but differed as to less
significant matters. . . . The Military Judge had
determined the credibility of these three defense
witnesses prior to assistant trial counsel’s cross-
examination of Private Gibson and prior to assistant
trial counsel’s comment in rebuttal on Private
Gibson’s invocation of his privilege.

20. When rendering findings, the Military Judge
considered the assistant trial counsel’s rebuttal
argument to which civilian defense counsel objected
regarding Private Gibson’s invocation of his
privilege. He thought about it while deliberating on
findings. He considered Private Gibson’s invocation
of the privilege as a matter affecting Private
Gibson’s credibility. He drew an adverse inference
that the invocation made Private Gibson less credible.
He considered the invocation of the privilege as a
matter affecting Private Gibson’s credibility in the
interest of justice as an alternative to the more
drastic, authorized remedy of striking and not
considering at all Private Gibson’s defense-favorable,
material direct testimony. He, however, gave the

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invocation of the privilege no weight because other
evidence persuaded him that Private Gibson, as well as
Private Lozada and Mrs. Matthews, had collaborated
their false testimony.

The DuBay military judge then made the following relevant

conclusions of law based on his findings of fact:

1. The Military Judge did not abuse his discretion by
allowing assistant trial counsel to comment on Private
Gibson’s invocation of the privilege against self-
incrimination in her rebuttal argument on findings.
Rather, the Military Judge applied the correct rule of
evidence, MRE 512(a)(2). That rule provides that
normally comment on claim of a privilege [sic] is not
allowed, but here the Military Judge determined that
the circumstances were not normal. He considered the
government’s error in the in-artful drafting of
Private Gibson’s grant of immunity, as well as the
lack of co-ordination with the U.S. attorney. His
primary concern was not to invoke the remedy of MRE
301(f)(2) and deprive appellant of material, favorable
evidence by striking Private Gibson’s direct
testimony. Rather than strike the direct testimony,
he invoked a less drastic remedy of allowing assistant
trial counsel to comment on the claim of privilege and
considered it in rendering findings, in order to
ensure that he considered Private Gibson’s testimony
offered by appellant, as well as to ensure that the
government had an opportunity to be heard, cognizant
that Private Gibson’s privilege invocation deprived
the government of significant impeachment evidence.
Therefore, he did not abuse his discretion by invoking
the Rule’s interest-of-justice exception and did not
improperly apply the rule of evidence. He applied the
correct rule and had an adequate factual basis for his
application of that rule’s exception.

. . . .

3. The Military Judge considered assistant trial
counsel’s argument regarding Private Gibson’s
invocation of the privilege; considered the invocation
of the privilege when rendering findings; drew an
adverse inference that the invocation made Private
Gibson less credible; told the parties on the record

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that he had invoked MRE 512’s interest-of-justice
exception when considering the invocation of the
privilege when rendering findings; and, made an ex
parte off-the-record comment to civilian defense
counsel and military defense counsel that he had
considered Private Gibson’s invocation of the
privilege in determining Private Gibson’s credibility.

4. The Military Judge gave no weight to Private
Gibson’s invocation of the privilege in determining
Private Gibson’s credibility and rendering findings. .
. .

IV. United States Army Court of Criminal Appeals Opinion on the

Merits

Following the DuBay hearing, Appellant submitted a

supplemental brief to the CCA alleging that the DuBay military

judge erred, first, in permitting the trial military judge to

testify about his deliberative process, and second, in finding

that the trial military judge properly permitted assistant trial

counsel to comment on PVT Gibson’s invocation of his privilege

against self-incrimination. With the benefit of the record and

the DuBay hearing, the CCA ultimately found that:

the military judge erred when applying Mil. R. Evid.
512, rather than the more specific and therefore
controlling rule, Mil. R. Evid. 301. Consequently, he
erred when he permitted trial counsel to comment
during rebuttal argument on PVT Gibson’s invocation of
his Fifth Amendment privilege against self-
incrimination. Lastly, the military judge erred when
he ruled on defense counsel’s objection to the
military judge drawing an adverse inference from PVT
Gibson’s invocation of his Fifth Amendment privilege
against self-incrimination.

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Matthews, 66 M.J. at 651-53. The CCA then applied a

constitutional error analysis to determine that the trial

military judge’s errors were harmless beyond a reasonable doubt.

Id. at 653. In conducting this analysis, the CCA observed that

“the [trial] military judge testified [at the DuBay hearing]

concerning his analysis of PVT Gibson’s credibility as a

witness.” Id. at 652. The CCA further noted that “[w]hile the

[trial] military judge acknowledged he drew an adverse

inference, he reiterated that he gave no weight to this

inference in his deliberations.” Id.

The CCA addressed Appellant’s allegation that the DuBay

military judge erred in permitting the trial military judge to

testify about his deliberative process at the DuBay hearing in

the following footnote:

Appellate defense counsel, in supplemental
pleadings, assert[s] the military judge violated the
deliberative process privilege, as explained in Mil.
R. Evid. 509 and Mil. R. Evid. 606(b), by testifying
about his thought process in ruling on the Mil. R.
Evid. 512 objection. Military Rules of Evidence 509
and 606(b) describe the prohibitions which exist to
keep jury members from disclosing their deliberative
process, through testimony or affidavits, not judges.
Appellant provides no case law to support the
proposition that these evidentiary rules apply to a
military judge’s deliberative process. In fact, in
United States v. McNutt, 62 M.J. 16, 20 (C.A.A.F.
2005), our superior court held Mil. R. Evid. 606(b)
“applies to court members only, and thus, does not
apply to protect the statement[s] of the military
judge. . . .” Additionally, the court specifically
addressed the present situation, recognizing “there
[will be] certain extraordinary situations in which a

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judge may be called upon to explain his verdict or
rulings in subsequent proceedings.” Id. at 21. In
the instant case, such a circumstance arose and,
acting under this contingency, we ordered the DuBay
hearing.

Matthews, 66 M.J. at 652 n.13 (alteration in original).

ANALYSIS

We review the CCA’s conclusion that M.R.E. 509 is

inapplicable to military judges de novo. See United States v.

Flores, 64 M.J. 451, 454 (C.A.A.F. 2007); United States v. Best,

61 M.J. 376, 381 (C.A.A.F. 2005); United States v. McCollum, 58

M.J. 323, 340 (C.A.A.F. 2003).3 In addressing the granted issue,

we look first to the text of M.R.E. 509, and in particular, the

use of the terms “courts” and “privilege.” In light of M.R.E.

509’s incorporation of federal evidentiary law, as well as the

varied ways in which the term “privilege” might be read, we

ultimately turn to federal common law, consistent with M.R.E.

101, to answer the question presented. Indeed, for the reasons

3
This case presents a situation similar to that in Best, 61 M.J.
376. In that case, the lower court affirmed the findings and
sentence after considering the findings of a DuBay hearing. Id.
at 377. We then reviewed de novo the lower court’s post-DuBay
interpretation of R.C.M. 706. Id. at 381. As in Best, plain
error analysis is inapplicable to what the DuBay military judge
may or may not have considered in this case, notwithstanding
that neither party objected to the trial military judge’s DuBay
testimony. The third prong of the test for plain error focuses
on the outcome or judgment at the court-martial. See United
States v. Schlamer, 52 M.J. 80, 85-86 (C.A.A.F. 1999).
Moreover, as a DuBay hearing has no outcome per se, we review
the CCA’s conclusion on a question of law de novo and remand to
the lower court for reconsideration of the evidentiary issues
that might have affected its ultimate appellate decision.

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explained below, it would not be possible to interpret M.R.E.

509 without reliance on federal common law and its purposes.

I. Applicability of M.R.E. 509 to Military Judges

M.R.E. 509 is included in the “Privileges” section of the

Military Rules of Evidence and is entitled “Deliberations of

courts and juries.” M.R.E. 509 provides that:

Except as provided in Mil. R. Evid. 606, the
deliberations of courts and grand and petit juries are
privileged to the extent that such matters are
privileged in trial of criminal cases in the United
States district courts, but the results of the
deliberations are not privileged.

M.R.E. 509 “is taken from 1969 Manual Para. 151 but has been

modified to ensure conformity with Rule 606(b) which deals

specifically with disclosure of deliberations in certain cases.”

Manual for Courts-Martial, United States, Analysis of the

Military Rules of Evidence app. 22 at A22-44 (2008 ed.) (MCM).

Paragraph 151(b) of both the 1951 and 1969 MCM provided

that “[t]he deliberations of courts and of grand or petit juries

are privileged, but the results of their deliberations are not

privileged.” The reference to “courts and grand or petit

juries” in M.R.E. 509 has not changed substantively since the

1951 MCM.4

4
The only difference between the 1951 MCM and more modern
versions of the MCM is the use of “and” versus “or.” In 1951,
the MCM stated “grand or petit juries,” (emphasis added), while
the 2008 MCM refers to “grand and petit juries.” (emphasis
added).

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The parties disagree on the meaning of “courts,” and thus

whether M.R.E. 509 applies to military judges. Appellant argues

that the plain meaning of “courts” includes a military judge

sitting alone. Thus, according to Appellant, M.R.E. 509

prohibits a military judge from testifying about his or her

deliberative process. On the other hand, the Government argues

that the history of the MCM demonstrates that “courts” does not

include military judges. The Government contends that the

reference to “courts” in the 1951 MCM could not have referred to

a military judge sitting in a judge alone court-martial because

the position of military judge did not exist prior to 1968.

“It is a well established rule that principles of statutory

construction are used in construing the . . . Military Rules of

Evidence . . . .” United States v. Custis, 65 M.J. 366, 370

(C.A.A.F. 2007). “‘[W]hen the statute’s language is plain, the

sole function of the courts -- at least where the disposition

required by the text is not absurd -- is to enforce it according

to its terms.’” Id. (quoting Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)) (alteration in

original). “In construing the language of a statute or rule, it

is generally understood that the words should be given their

common and approved usage.” McCollum, 58 M.J. at 340 (citation

and quotation marks omitted).

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Dictionaries from both today and the 1950s suggest that

“court” is tantamount to “judge.” According to the 1951 Fourth

Edition of Black’s Law Dictionary, “[t]he words ‘court’ and

‘judge,’ or ‘judges,’ are frequently used in statutes as

synonymous.” Black’s Law Dictionary 425 (4th ed. 1951). The

1952 version of Webster’s defines “court” as, inter alia, “a

judge or judges sitting for the hearing or trial of causes.

. . . The judge or judges, as distinguished from the counsel or

jury.” Webster’s New Int’l Dictionary Unabridged 611 (2d ed.

1952). The modern-day Black’s Law Dictionary defines “court” as

“1. A governmental body consisting of one or more judges who

sit to adjudicate disputes and administer justice . . . . 2.

The judge or judges who sit on such governmental body . . . .”

Black’s Law Dictionary 378 (8th ed. 2004). Therefore, under the

plain meaning of “courts,” M.R.E. 509 could be read to include a

judge, which, in turn, evolved to incorporate a military judge.

However, while the phrase “courts and grand and petit

juries” has remained substantively constant over time, related

sections of the MCM have changed, which may or may not alter the

meaning of “courts.” The 1951 MCM reference to “courts and

grand and petit juries” may have referred to the deliberations

of both the judge and juries in civilian courts, given that

neither military judges nor grand or petit juries existed in the

military justice system at that time. However, in 1968, the

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Military Justice Act created the position of military judge and

the judge alone court-martial. Military Justice Act of 1968,

Pub. L. No. 90-632, 70A Stat. 37 (codified as amended in

scattered sections of 10 U.S.C.). The President promulgated the

Military Rules of Evidence in 1980, which expressly protects the

deliberations of members in M.R.E. 606(b). Exec. Order No.

12,198, 45 Fed. Reg. 16,932 (Mar. 12, 1980). What is less clear

is whether, by restricting the application of M.R.E. 606(b) to

only members, the drafters intended to preclude any protection

over the deliberations of military judges. See McNutt, 62 M.J.

at 20 (concluding “that M.R.E. 606(b) applies to court members

only”). Or, alternatively, whether the drafters determined that

the reference to “courts” in M.R.E. 509 was sufficient to

accomplish that goal, negating the need to either include

“courts” within M.R.E. 606(b) or amend M.R.E. 509. There is no

need to amend language when it already covers the intended

result. See Stone v. Immigration and Naturalization Serv., 514

U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we

presume it intends its amendment to have real and substantial

effect.”).

The canon of contextual construction that “counsels that a

word gathers meaning from the words around it” also supports the

conclusion that “courts” includes military judges. Babbitt v.

Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 702

19
United States v. Matthews, No. 08-0613/AR

(1995) (citation and quotation marks omitted). M.R.E. 509

includes a reference to both “courts and grand and petit juries”

and “United States district courts.” The first reference in

M.R.E. 509 is to “courts,” but the text later refers more

specifically to “United States district courts.” Thus, that

initial reference to “courts” likely cannot mean only “United

States district courts.” Had the drafters intended the first

reference to “courts” to mean civilian courts, they would not

have distinguished between courts in general and “United States

district courts” more specifically. Separating courts from

juries also suggests that “courts” does not equal juries in

M.R.E. 509.5

5
M.R.E. 606(b) addresses if and when a court member may testify
about the deliberations at the court-martial. The corollary
rule regarding the competency of a military judge as a witness,
M.R.E. 605, does not address inquiry into a military judge’s
deliberations.

Rule 605. Competency of a military judge as witness

(a) The military judge presiding at the court-martial
may not testify in that court-martial as a witness.
No objection need be made to preserve the point.

(b) This rule does not preclude the military judge
from placing on the record matters concerning
docketing of the case.

M.R.E. 605. Nevertheless, the application of M.R.E. 606 to only
court members does not preclude M.R.E. 509 from applying to
military judges. M.R.E. 606 limits M.R.E. 509 to the extent
M.R.E. 509 protects the deliberations of court members; however,
this limitation does not prevent or preclude M.R.E. 509 from
applying to a military judge’s deliberations.

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Given the plain meaning of the word “courts,” it is

reasonable to conclude that M.R.E. 509 includes military judges

within its ambit. However, while M.R.E. 509 reaches military

judges, it is unclear whether M.R.E. 509 protects the

deliberative process of military judges or, alternatively,

whether it creates a privilege that shields such information but

requires affirmative judicial invocation similar to that

required by other privileges embodied in the Military Rules of

Evidence.

II. A “Protection” or a “Privilege”

There are at least two reasonable ways to interpret the

term “privilege” in M.R.E. 509, in the absence of legislative

history, controlling guidance in the MCM discussion or analysis,

or case law.6 First, because the drafters included M.R.E. 509 in

the Privileges section of the Military Rules of Evidence,

alongside privileges such as the lawyer-client privilege, M.R.E.

502, husband-wife privilege, M.R.E. 504, and the

psychotherapist-patient privilege, M.R.E. 513, one might infer

that “privilege” should be interpreted similarly to the way the

term is used in the context of other privileges. Under this

reading, by using “privilege” to describe the limitation on

disclosing the deliberative processes of military judges, M.R.E.

6
Of course, one reason that scant guidance exists is because the
issue of judicial testimony rarely arises.

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509 would confer upon a person or an institutional entity an

affirmative privilege against disclosure of certain information.

That person or institution would hold the privilege, could

assert the privilege, and could voluntarily waive such

privilege.

Second, and alternatively, because M.R.E. 509 defines the

scope of the privilege as coterminous with that found in “trial

of criminal cases in the United States district courts,” one

might look to federal evidentiary law to determine the meaning

of “privilege” in this specific context. An examination of

federal evidentiary law, however, reveals that the civilian

federal courts recognize a general rule against review of a

trial judge’s deliberative process, rather than a privilege over

such information that can be invoked and waived, such as the

privilege that exists in the context of the attorney-client

relationship. Fayerweather v. Ritch, 195 U.S. 276, 306-07

(1904); Perkins v. LeCureux, 58 F.3d 214, 220 (6th Cir. 1995),

superseded by statute on other grounds, Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (AEDPA); Washington v. Strickland, 693 F.2d 1243,

1263 (5th Cir. 1982), rev’d on other grounds, 466 U.S. 668

(1984), superseded by statute on other grounds, AEDPA; United

States v. Crouch, 566 F.2d 1311, 1316 (5th Cir. 1978), abrogated

on other grounds by United States v. Singleterry, 683 F.2d 122

22
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(5th Cir. 1982); Morrison v. Kimmelman, 650 F. Supp. 801, 806

(D.N.J. 1986), superseded by statute on other grounds, AEDPA.

Thus, the deliberative process of a judge in civilian court is

subject to protection rather than a claim of privilege in the

traditional legal sense.

In our view, both readings are plausible. Therefore,

consistent with M.R.E. 101, and the text of M.R.E. 509 itself,

we look to the Federal Rules of Evidence and federal common law

generally to interpret M.R.E. 509 and adopt the prevailing

federal common law rule that the deliberative process of judges

is protected from disclosure.7

7
“M.R.E. 101(b) instructs military courts to look to the federal
rules and the common law for guidance on evidentiary issues
where doing so is ‘not otherwise prescribed in [the] Manual . .
. and insofar as practicable and not inconsistent with or
contrary to the code or [the] Manual.’” McCollum, 58 M.J. at
341 (quoting M.R.E. 101(b)) (alteration in original). M.R.E.
101(b) further mandates that, when looking to such federal law,
military courts should consider:

(1) First, the rules of evidence generally recognized
in the trial of criminal cases in the United States
district courts; and

(2) Second, when not inconsistent with subdivision
(b)(1), the rules of evidence at common law.

The Federal Rules of Evidence do not expressly protect the
deliberative processes of judges or treat such information as
privileged. See Fed. R. Evid. 501. However, federal common law
does provide such a protection.

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III. Federal Common Law

An analysis of federal common law on the deliberative

process of judges usually begins with Fayerweather, 195 U.S.

276. In Fayerweather, the Supreme Court stated that “no

testimony should be received except of open and tangible facts,”

emphasizing the potential for a negative effect on the judicial

system if such testimony were permitted:

[T]he testimony of the trial judge, given six years
after the case has been disposed of, in respect to the
matters he considered and passed upon, was obviously
incompetent. True, the reasoning of the court for the
rule is not wholly applicable, for as the case was
tried before a single judge there were not two or more
minds coming by different processes to the same
result. Nevertheless no testimony should be received
except of open and tangible facts -- matters which are
susceptible of evidence on both sides. A judgment is
a solemn record. Parties have a right to rely upon
it. It should not lightly be disturbed, and ought
never to be overthrown or limited by the oral
testimony of a judge or juror of what he had in mind
at the time of the decision.

Id. at 306-07.8

8
Later, when discussing the protection of administrative
deliberative processes, the Supreme Court stated that:

The proceeding before the Secretary [of Agriculture]
has a quality resembling a judicial proceeding. Such
an examination of a judge would be destructive of
judicial responsibility. . . . Just as a judge cannot
be subjected to such a scrutiny . . ., so the
integrity of the administrative process must be
equally respected.

United States v. Morgan, 313 U.S. 409, 422 (1941) (citations and
quotation marks omitted). We recognize that the deliberative
processes of agencies are protected by a privilege in the
traditional sense that agency officials hold and can waive,

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United States v. Matthews, No. 08-0613/AR

Based on the Fayerweather foundation, other courts have

similarly limited the post-trial testimony of judges.

[T]he overwhelming authority from the federal courts in
this country, including the United States Supreme Court,
makes it clear that a judge may not be compelled to testify
concerning the mental processes used in formulating
official judgments or the reasons that motivated him in the
performance of his official duties.

United States v. Roth, 332 F. Supp. 2d 565, 567-68 (S.D.N.Y.

2004) (refusing to permit a party to subpoena, and thus compel,

the judge to testify concerning his deliberative process); see

also Crouch, 566 F.2d at 1316 (“A judge’s statement of his

mental processes is absolutely unreviewable.”). “[T]his

[protection] must be construed and applied with the greatest

care for fear that it be misused or abused.” Standard Packaging

Corp. v. Curwood, Inc., 365 F. Supp. 134, 135 (N.D. Ill. 1973)

(analogizing the protection provided by the “mental processes”

rule to a “testimonial ‘privilege’”). While the case law is

often inconsistent in its terminology, whether describing the

limitation on deliberative process testimony as a privilege, a

protection, inadmissible evidence, or some other

characterization, the operation and application of the

which differs from the manner in which federal courts have
protected the deliberative processes of judges. However, while
“[t]he inner workings of administrative decision making
processes are almost never subject to discovery[,] . . . the
inner workings of decision making by courts are kept in even
greater confidence.” Goetz v. Crosson, 41 F.3d 800, 805 (2d
Cir. 1994) (citations omitted).

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United States v. Matthews, No. 08-0613/AR

limitation is the same -- courts will not review the

deliberative process of a judge. Crouch, 566 F.2d at 1316.

While the underlying principle holds firm, federal courts

have stopped short of prohibiting judicial testimony entirely

and have employed a “case-by-case” evaluation to delineate

between protected and unprotected testimony. Standard Packaging

Corp., 365 F. Supp. at 135. A number of decisional trends

appear.

The most common line of demarcation is between factual

testimony and testimony about a judge’s deliberative process, as

suggested in Fayerweather itself. 195 U.S. at 306-07. While a

judge may testify “to the extent [the testimony] contains

personal knowledge of historical facts or expert opinion[,]” a

court may not consider testimony in which a judge explains his

reasoning and deliberative process for reaching a decision.

Washington, 693 F.2d at 1263. Thus, federal courts have

permitted judicial testimony about facts when a sufficient basis

exists for calling the judge to testify and those facts are

unavailable from other sources. United States v. Roebuck, 271

F. Supp. 2d 712, 719-21 (D.V.I. 2003); United States v. Edwards,

39 F. Supp. 2d 692, 706 (M.D. La. 1999); United States v.

Frankenthal, 582 F.2d 1102, 1106, 1108 (7th Cir. 1978)

(concluding that a judge could properly testify when that judge

was the sole possessor of certain facts through which the

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United States v. Matthews, No. 08-0613/AR

accused was attempting to prove witness bias). However,

questions posed to a judge to elicit historical facts cannot

“probe into the mental processes employed in formulating the

judgment in question.”9 Roebuck, 271 F. Supp. 2d at 719.

Further, a judge may be permitted to testify where a

credible showing of judicial misconduct exists. Id. at 718.

Only in the most extraordinary of cases, such as a strong
showing of bad faith or improper behavior by a judge or
quasi-judicial officer or where circumstances were such to
overcome the presumption of regularity as to the acts of
the decision maker, may a judge be questioned as to matters
within the scope of his adjudicative duties.

Id.10

9
In a case involving a habeas hearing, the United States Court
of Appeals for the Seventh Circuit found that not all policy
reasons support a distinction between testimony concerning facts
and testimony concerning deliberative processes. Weidner v.
Thieret, 932 F.2d 626, 632-33 (7th Cir. 1991), superseded by
statute on other grounds, AEDPA.

Memories of mental processes are not . . . more
perishable than memories of historical facts. Both
potentially pose the same threat to the finality of a
judgment, as finality may be called into question
equally by a judge’s memory of what happened at a
particular moment at trial and a judge’s memory of why
she ruled a certain way on a particular motion.

Id. at 632. However, the Weidner court noted a separate
distinction in that testimony about mental processes is
“essentially irrebuttable,” while a party may be able to rebut a
judge’s testimony about historical facts. Id.
10
In surveying the federal common law, we recognize as well that
a few federal courts have allowed state court judges to testify
or submit affidavits in the context of habeas hearings. See
Weidner, 932 F.2d at 633 (concluding the court did not “clearly
err” when permitting state judge to submit an affidavit in a

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IV. Applying M.R.E. 509 and Common Law to this Case

In this case, the CCA ordered a DuBay hearing to examine

“[w]hether the military judge properly applied Mil. R. Evid.

512(a)(2) . . .” and “[w]hat, if anything, did the military

judge say concerning PVT Gibson’s credibility . . . .” Matthews

Order, No. ARMY 20030404, slip op. at 6. The Government called

the trial military judge to testify at the DuBay hearing and

questioned the judge about his reasoning and motives for his

holdings at Appellant’s court-martial. We recognize that the

questions posed to the trial military judge were an attempt to

obey the CCA’s order, however, such a practice is ill-advised,

regardless of which party calls or compels the trial military

judge to testify.

While it is true that the rule has generally been
applied where the party adverse to the judgment or
record calls an unwilling judicial or quasi-judicial
officer for the purpose of contradicting or impeaching
the record . . ., it does not necessarily follow that
the result is or should be quite different when the
testimony of the judge or administrative officer is
ostensibly offered to support the position sustained
[below] . . . .

habeas hearing); Wilson v. Lash, 457 F.2d 106, 110 (7th Cir.
1972) (permitting state judge to testify at habeas hearing about
the quality of defense counsel’s performance at trial),
superseded by statute on other grounds, AEDPA. However, this
practice appears more akin to a remand for further analysis or
factfinding than it is to exploration of a judge’s deliberative
process, and the cases were decided before Congress passed the
AEDPA, which had a significant effect on habeas corpus
jurisprudence. Given the absence of authoritative sources on
judicial testimony, we nonetheless draw on these cases for
guidance.

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United States v. Matthews, No. 08-0613/AR

Feller v. Bd. of Educ., 583 F. Supp. 1526, 1529 (D. Conn. 1984)

(citation and quotation marks omitted).

Moreover, this case is not one involving issues about which

federal courts have previously permitted trial judges to testify

-- this is not a habeas case, there is no evidence of judicial

bad faith or misconduct, and inquiry was not limited to material

factual matters about which the military judge was uniquely or

specially situated to testify. To the contrary, in response to

questions, the trial military judge provided lengthy testimony

about his deliberative process for deciding how to rule on

certain issues at the court-martial. In fairness to the CCA,

the DuBay military judge, and the trial military judge, there is

no definitive military case law from this Court on this issue,

and sparse federal case law. But there is a reason for that:

permitting judicial deliberative process testimony is a bad

idea, and thus few courts have done so or have addressed these

issues.

The limited federal common law that exists, predicated on

Fayerweather, explains why a military judge’s deliberative

process should generally be free from consideration in post-

judgment proceedings. First, “[t]he prohibition against

compelling the testimony of a judge is to protect the integrity

of the legal system itself.” Roebuck, 271 F. Supp. 2d at 722.

Permitting a military judge to testify about his deliberative

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United States v. Matthews, No. 08-0613/AR

process in making a decision at the court-martial could expose

the judicial system and its judges to “frivolous attacks upon

its dignity and integrity, and interrupt[] . . . its ordinary

and proper functioning.” United States v. Dowdy, 440 F. Supp.

894, 896 (W.D. Va. 1977) (citation and question marks omitted)

(omission in original).

Second, such testimony threatens the finality of judgments.

Washington, 693 F.2d at 1263. “When a verdict is rendered,

neither the judge nor the jury is asked for justifications. The

decision may be reviewed and reversed, modified or amended.

However, the trier of fact is not to be placed on the witness

stand and cross examined as to the reasons for the outcome,

absent evidence of improprieties in the decision making process

itself.” Morrison, 650 F. Supp. at 807.

Third, deliberative process testimony disrupts one of the

basic tenants of evidentiary law -- reliability. Testimony

about a judge’s deliberative process poses special risks of

inaccuracy. Id. Here, the trial military judge testified at

the DuBay hearing three years after the court-martial. We do

not doubt the good faith ability of a military judge to recall

exact details about a court-martial that occurred several years

prior. However, the potential for inaccurate recollections

generally outweighs the probative value that such evidence may

have. Washington, 693 F.2d at 1263; see also Perkins, 58 F.3d

30
United States v. Matthews, No. 08-0613/AR

at 220 (holding that the district court could not consider the

trial judge’s statements about a case that took place over ten

years prior). Moreover, alerted to the legal question in

appellate controversy, a judge might consciously or

subconsciously attempt to perfect the record in order to

withstand appellate review, and do so in good faith.

Fourth, the concerns surrounding deliberative process

testimony are compounded because a judge’s testimony regarding

his own deliberations is “essentially irrebuttable.” Weidner,

932 F.2d at 632.

Admitting the testimony of the decision-maker below not
only places a heavy burden on the party opposing [that]
testimony because of that decision-maker’s virtually
unimpeachable credibility, but it becomes practically
impossible for a party to challenge the mental impressions
of a [decision-maker], as his thought process is known to
him alone.

Rubens v. Mason, 387 F.3d 183, 191 (2d Cir. 2004) (citation and

quotation marks omitted) (alterations in original).

Fifth, the medium for evaluating a military judge’s

reasoning is the record of trial, not a DuBay hearing. Allowing

a military judge to testify about his reasoning for a particular

decision provides a disincentive for sufficiently articulating

his holdings on the record. Further, parties could also take

advantage of such a tool to correct record errors to which they

failed to object or request further explanation from the

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United States v. Matthews, No. 08-0613/AR

military judge.11 “It is inappropriate . . . to base an

appellate opinion on assertions dehors the record.” Crouch, 566

F.2d at 1316 (citation and quotation marks omitted) (omission in

original); see also Proffitt v. Wainwright, 685 F.2d 1227, 1255

(11th Cir. 1982) (“Such post-decision statements by a judge

. . . about his mental processes in reaching decision may not be

used as evidence in a subsequent challenge to the decision.”),

superseded by statute on other grounds, AEDPA, as recognized in

Moore v. Campbell, 344 F.3d 1313, 1324 n.9 (11th Cir. 2003).

Appellant originally appealed to the CCA to determine

whether the trial “military judge erred by allowing trial

counsel to comment upon the defense witness[’s] . . . invocation

of his Fifth Amendment privilege against self-incrimination, and

thereafter, improperly drawing an adverse inference based on

those comments.” Matthews, 66 M.J. at 645-46. However,

Fayerweather cautions against consideration of the judge’s

deliberative process in response to or in evaluating that

evidence. See Brownko Int’l, Inc. v. Ogden Steel Co., 585 F.

Supp. 1432, 1436 (S.D.N.Y. 1983) (concluding that “the [Supreme]

Court in Fayerweather[, 195 U.S. at 306-07] in no circumstances

condones the testimony of the trial judge himself to explain his

decision”).

11
For example, parties may seek to supplement the record
regarding the manner in which M.R.E. 403 was applied or the
reasons for seating a contested member.

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United States v. Matthews, No. 08-0613/AR

This is not a case where the underlying appeal or policy

implications compel testimony from the trial military judge

about his reasoning or motivations. Thus, in formulating its

opinion, the CCA should not have considered the trial military

judge’s testimony at the DuBay hearing that described his

deliberations at the court-martial, regardless of whether the

trial military judge was willing to testify.

The Government contends that because the military judge

provided a brief recitation of the facts and his findings on the

record, he “waived his deliberative privilege” and could

“appropriately testif[y] about those limited matters during the

Du[B]ay hearing.” Under this reasoning, any time a military

judge makes findings of fact or conclusions of law on the

record, he can later be called upon to explain these findings in

more detail in a subsequent proceeding. This is inconsistent

with M.R.E. 509’s incorporation of federal common law, which

protects a military judge’s deliberative process, and with the

policy supporting such a protection. “If a judge seeks to give

reasons for a decision, we are wiser for what is said on the

record. However, once a judicial opinion is written and filed,

we are all as expert in its interpretation as the hand that

wrote it. It belongs to us all.” Morrison, 650 F. Supp. at

807.

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In summary, it is “well-settled law that testimony

revealing the deliberative thought processes of judges . . . is

inadmissible.” Rubens, 387 F.3d at 191. Therefore, we hold

that the portions of the trial military judge’s DuBay testimony

in which he explained his deliberative process and reasoning at

the court-martial are unreviewable evidence that cannot be

considered by the CCA in this case. Perkins, 58 F.3d at 220;

Washington, 693 F.2d at 1263.

Our conclusion is consistent with the Military Rules of

Evidence, the Rules for Courts-Martial, and this Court’s

previous case law. M.R.E. 601 indicates that “[e]very person is

competent to be a witness except as otherwise provided in these

rules.” Indeed, the subsequent evidentiary rules limit this

general principle with regard to who may testify and the subject

matter to which that person may testify. While M.R.E. 605,

which addresses the competency of a military judge to serve as a

witness, does not address a military judge’s deliberative

process, M.R.E. 605 is generally one of exclusion, rather than

inclusion. See Roth, 332 F. Supp. 2d at 566 (interpreting the

corollary Federal Rule of Evidence).12 Further, our decision is

12
In keeping with this principle, some judges have refused to
testify when subpoenaed. See In re Cook, 49 F.3d 263, 265 (7th
Cir. 1995) (noting that the trial judge declined to testify
about the proceedings at trial); Crenshaw v. Dywan, 34 F. Supp.
2d 707, 710 (N.D. Ind. 1999) (finding that the court could
properly decline to submit to a deposition).

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United States v. Matthews, No. 08-0613/AR

consistent with McNutt, 62 M.J. 16. In that case, we stated

that:

Our holding in this case in no way implies that the
mental deliberations of military judges are not
protected or that the decision-making processes of
military judges are more open to scrutiny than the
decision-making processes of members. We hold only
that M.R.E. 606(b) is not the vehicle to protect those
mental processes of military judges.

Id. at 20 n.26. Today we hold that the federal common law

protection of the deliberative processes of judges is

incorporated into military law through M.R.E. 509, and

encompasses military judges sitting alone. Although the term

“privilege” in this context is ambiguous, we interpret it in a

manner consistent with federal common law, and thus also in a

manner consistent with both M.R.E. 509 and M.R.E. 101.

CONCLUSION

In this case, we do not know the extent to which the CCA

considered the testimony of the military trial judge regarding

his deliberative process in applying M.R.E. 512, if at all. In

light of our conclusion that such testimony is unreviewable, the

appellate record does not now reflect whether or not the lower

court would have reached its conclusion on harmless error

without considering that testimony. Therefore, the decision of

the United States Army Court of Criminal Appeals is set aside.

The record of trial is returned to the Judge Advocate General of

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the Army for remand to that court for review consistent with

this opinion.

36