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


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


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


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


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


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


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


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

     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,


                               10
United States v. Matthews, No. 08-0613/AR

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

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

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

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

     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.

                                  15
United States v. Matthews, No. 08-0613/AR

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

     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).




                                 17
United States v. Matthews, No. 08-0613/AR

      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


                                18
United States v. Matthews, No. 08-0613/AR

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.

                                20
United States v. Matthews, No. 08-0613/AR

      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.

                                21
United States v. Matthews, No. 08-0613/AR

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

(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.

                                 23
United States v. Matthews, No. 08-0613/AR

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,

                                 24
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).

                               25
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


                                  26
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

                                  27
United States v. Matthews, No. 08-0613/AR

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.

                                28
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


                                 29
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




                                31
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.

                                 32
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.




                                 33
United States v. Matthews, No. 08-0613/AR

     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).

                                34
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




                                  35
United States v. Matthews, No. 08-0613/AR

the Army for remand to that court for review consistent with

this opinion.




                               36
