United States v. Barton

6 M.J. 16, 1978 CMA LEXIS 9563
CourtUnited States Court of Military Appeals
DecidedOctober 30, 1978
DocketNos. 32,010, 32,011; CGCM 9943, 9942
StatusPublished
Cited by2 cases

This text of 6 M.J. 16 (United States v. Barton) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barton, 6 M.J. 16, 1978 CMA LEXIS 9563 (cma 1978).

Opinions

Opinion of the Court

PER CURIAM:

On March 25, 1976, the General Counsel, Department of Transportation, certified two issues to this Court:1

Was the Court of Military Review correct in determining that a videotape transcript does not, as a matter of law, constitute a transcript, verbatim or otherwise, as that term is used in the Manual for Courts-Martial, United States, 1969 (Revised edition)?
Was the Court of Military Review correct in its conclusion that it had not been presented with a record of trial because that record contained a videotape transcript in lieu of a written transcript?

Appellants were tried by general courtsmartiál and received sentences which mandated review before the United States Coast Guard Court of Military Review. See Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866. No written transcripts of the trial proceedings were prepared; instead, pursuant to Commandant Notice 5810, dated February 20, 1975, video[17]*17tapes of the trials were submitted. The Court of Military Review refused to review the proceedings and in justification of its action stated, in United States v. Simpson, 2 M.J. 1125, 1128-29 (C.G.C.M.R.1976):

Implicit in the President’s rules in the Manual — rules which have the force of law — is the requirement for a record that is written or printed.
Authorization for the substitution of videotapes in place of the transcript with which lawyers and judges have been trained to deal would bring about a profound change in the established practice. It is plain that neither the Congress nor the President has authorized such a change. Commandant Notice 5810 which purported to authorize “the use of videotape as the transcript” in Coast Guard courts-martial was issued without authority from the President. It is in derogation of the legal authority which belongs to the President and is without effect.
It follows that a lawful record of trial in the case above entitled has not, as yet, been referred to this Court; and consequently, the Court is not empowered to make a determination in the case. [Footnote omitted.]

Although the term “record” is used throughout the Uniform Code of Military Justice in reference to trial proceedings, it is not specifically defined.2 However, the President, pursuant to his power to prescribe rules of procedure under Article 36, UCMJ, 10 U.S.C. § 836, has provided some elaboration in the Manual for Courts-Martial, United States, 1969 (Revised edition). Paragraph 15b of the Manual, which sets forth the prerequisites for the imposition of a bad-conduct discharge by a special court-martial, requires “a complete and verbatim record of the proceedings.” Similarly, paragraph 83a requires “a verbatim transcript of all proceedings” where a special court-martial adjudges a bad-conduct discharge. Paragraph 82b sets forth the requirements for “[t]he record of proceedings” before a general court-martial and requires, with some exceptions, “a verbatim transcript.” And, paragraph 82e notes that trial counsel should examine the record “[a]fter the record has been transcribed.”

Initially, we note that the present cases do not involve the use of videotapes as evidence, a practice which has attained some degree of acceptability. See Fed.R. Civ.P. 30(b)(4); Fed.R.Crim.P. 15(d); Fed.R. Evid. 1001 (1975); and Annot. 60 A.L.R.3d 333 (1974). Rather, the issue presented here is whether a videotape may be substituted for the traditional written transcript of trial proceedings. Government counsel submit that, because the tapes in question recorded the trials in both video and audio medium, “verbatim records” were provided. We disagree.

While the various Manual provisions specify the requisite contents of a record of trial, they implicitly require that such records be in written form. This conclusion is inescapable from the interrelationship between the cited Manual provisions and paragraph 49b, which sets forth the duties of the court reporter and provides:

b. Duties. (1) General. See Article 39. He shall record the proceedings of and testimony taken before courts-martial, courts of inquiry, or military commissions for which he is detailed or employed (Art. 28) and may do this in the first instance in longhand, shorthand, or by mechanical or electronic means. [Emphasis added.]

The quoted provision clearly recognizes the possibility of the use of an electronic medium “in the first instance” of recording trial proceedings, but other Manual provisions require the preparation of a transcript therefrom. The word “transcript” is defined in Black’s Law Dictionary 1669 (4th ed. 1968), as

That which has been transcribed; a copy of any kind; a writing made from or after an original; a copy; a copy, particularly of a record; a copy of an original [18]*18writing or deed and suggests the idea of an original writing. Stephenson v. State, 179 N.E. 633, 637, 205 Ind. 141; O’Quinn v. Tate, Tex.Civ.App., 187 S.W.2d 241, 243.

Similarly, it is defined in Webster’s New Collegiate Dictionary, p. 1240 (1975 edition), as:

a: a written, printed, or typed copy . typewritten copy of dictated or recorded material b: an official or legal and often published copy.

Accordingly, it is apparent that the requirements relating to records of trial include the more traditional written or printed transcripts. We note that paragraph 49, Manual, supra, is similar to 28 U.S.C. § 753(b), which permits electronic sound recordings. However, the court, in United States v. Jonas, 540 F.2d 566 (7th Cir. 1976), held that audiotapes are not an adequate substitute for written transcripts.

While Congress did not specifically define “record of the proceedings,” Article 38(a), UCMJ, 10 U.S.C. § 838(a), we conclude that the phrase was used in the traditional sense to mean a written transcript and the Manual is consistent with the Uniform Code. Furthermore, Article 54(c), UCMJ, 10 U:S.C. § 854(c), requires that “[a] copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.” This provision clearly contemplates a written transcript, as a' video tape would be totally useless to an accused unless he was also given the equipment necessary for the viewing of such a tape.

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Related

United States v. Davis
33 M.J. 13 (United States Court of Military Appeals, 1991)
United States v. Barton
11 M.J. 621 (U S Coast Guard Court of Military Review, 1981)

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6 M.J. 16, 1978 CMA LEXIS 9563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barton-cma-1978.