pppffedPrOruicpp
Privacy and Your Cell Phone - Keep Your Cards Close to Your Chest
United States v. Secord - Court of Appeals for the Armed Forces
Trying a Case for the Appellate Record - a lesson in the Value of a Defense Proffer
How can the recent changes to the Military Rules of Evidence affect your case?
When I was a young military lawyer just starting out in the Army JAG Corps, I tried reading the Military Rules of Evidence front to back. Needless to say, I didn't learn anything that way, nor did I retain anything useful.
It takes years of practice, research and being in court before a military lawyer has a sufficient familiarity with the Military Rules of Evidence to be an effective trial lawyer. The rules continue to evolve as well, so keeping up with changes and understanding why the rules changed and how they may benefit a client is crucial.
A recent but subtle change to the Military Rules of Evidence, also referred to as the MREs, involves character evidence. Years ago, under Military Rule of Evidence 404(b) it used to be that a prosecutor could bring up all sorts of bad facts or bad character statements about the service member client, ask the question in front of the jury and then if there was an objection, state the justification to the Judge. But... the question had already been asked in front of the jury... planting the seed of doubt that the service member was of questionable moral character.
Now, the prosecution has to give written notice of any prior bad conduct by the military service member that it wants to use in open court well in advance of trial. The prosecution is required by the rules to say what conduct it thinks it may use, and just as importantly, it has to say why it wants to use it, and how it complies with the Military Rules of Evidence. Your military lawyer should, indeed they must, challenge this evidence in court before the start of your trial and keep the prosecution within the bounds of the Rules of Evidence.
Why is this important? It is important because the law affords you, as the servicemember, protections and it takes an experienced military defense lawyer to stand up the military officers who as prosecutors and tell the Judge why they are wrong. A military trial is not supposed to be a smear campaign against you, and a civilian lawyer, someone who is outside the system, has both the experience and knowledge to lead the Judge through the correct arguments.
** IRL ** - Knowing the evolution of the rules of evidence and how they work in practice isn't just a nice theory, it can make or break a case for an Accused. In a recent Army Court Martial, the prosecutor filed a motion to admit alleged bad conduct by the service member client. Not only did the Judge find that the conduct was completely irrelevant to the charges and it was kept out of court, but the Judge noted that the prosecution lacked the ability to prove that it had even occurred in the first place. This meant that the prosecution could not simply call witnesses to say demeaning things about the client in order to leave a bad impression about the client's leadership with the jury. This ruling threw the prosectors for a loop, they had to revise their case at the last minute, and the client was found not guilty of all charges.
On the small chance that a Military Justice nerd like me stumbles onto our humble blog, enjoy this Defense critique of the July 2025 CAAF opinion in United States v. Secord.
Rule for Court Martial 701(e)
(e) Access to witnesses and evidence. Each party shall have an adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence, subject to the limitations in paragraph (e)(1) of this rule. No party may unreasonably impede the access of another party to a witness or evidence.
Facts
Army Staff Sergeant Alex Secord was convicted at court-martial for various offenses related to cocaine use involving junior enlisted soldiers. As part of the investigation, as is common in drug cases, the Central Investigation Command (CIC) seized SSG Secord’s cell phone pursuant to a search authorization from a Military Magistrate.
I must note that CIC is not a Division (nor even a television show), and that referring to themselves as CID is misleading.
Regardless, for unknown reasons (the best guess is that CIC—no, I will not call them CID—sorry) lacked the technology to unlock this latest iPhone. CIC was unable to access the phone at all to conduct any forensic analysis.
The Government then refused to grant the Defense team access to SSG Secord’s cell phone in a confidential setting. In response, Defense counsel filed a motion to allow the Defense team and a digital forensic expert to examine the phone while it was in CIC custody. The motion was grounded in equal access to evidence: because the Government had seized the phone as evidence, it could not prevent the Defense from inspecting it. The motion argued that exculpatory evidence might be on the phone, although did not specify or profer specifics of what that evidence could be. It also implied that the client would provide his passcode to his attorney, allowing the Defense expert to unlock the device and conduct a thorough examination or data extraction if needed. The Defense, rightly, never agreed to provide the Government with the passcode.
Trial Court Ruling
The Military Judge ruled that under Rule for Courts Martial 701(e), both parties should have equal access to evidence and ordered joint, simultaneous access to the cell phone, with both experts present. To access the phone, the Defense would be required to provide the Government with the passcode, and both parties would have to conduct their review of the phone in each other's presence. Failure to provide the passcode would result in the Defense being denied access. The Court of Appeals for the Armed Forces (CAAF) noted in the opinion:
However, the military judge also held that if Appellant declined to provide his PIN to permit mutual collection of his cell phone data by both the Government and the Defense, Appellant’s motion would be denied in its entirety. Appellant was given one week to make a decision, and ultimately decided not to provide his PIN.
Under the Military Judge’s plan, the Government might observe Defense counsel as they carry out their duties, and vice versa. (By the way, I have never seen lawyers openly perform attorney work-product privileged tasks in front of opposing counsel as it negates privilege.) The Military Judge’s plan would clearly require violation of the work-product privilege.
Court of Appeals for the Armed Forces
CAAF sided with the Government (though not the Military Judge). It held that it did not have to provide access to the Defense because, in a technical sense, the Government did not have “control” of the data, as it did not have access to it. Harkening back to the 90s Clinton-esque discussion of “it depends on what the definition of ‘is’” is, CAAF parsed RCM 701 with fine precision, finding that physical possession of the cell phone, without more (i.e., access to its contents), meant the Government did not have “possession, custody, or control” of the cell data.
Why this doesn’t work in Defense land under the Constitution
As a would-be grammarian, I fully understand the analysis of the disjunctive and the word “or.” RCM 701(e) is Defense-friendly in that if the Government has any one of the three attachments “possession, custody, or control” of a piece of evidence, it must allow the Defense access to that evidence. The Government does not need all three attachments for the discovery and disclosure requirements to be triggered.
However, nowhere in RCM 701(e) is there a knowledge-sharing requirement, nor is there any reference to joint or “in the presence of” equating to equal access to evidence. In supporting the lower court’s holding that the Government did not owe the Defense any disclosure or access to the Defendant’s phone, CAAF blows right past the last sentence of RCM 701(e), “No party may unreasonably impede the access of another party to a witness or evidence,” and straight past the Defendant’s 5th Amendment right to silence when it conditioned access to the Defendant’s own phone on the Defendant providing the Government the passcode.
The Government physically possessed the phone, which, in legal, philosophical, moral, and physical terms, is equivalent to having custody of the data. Since the Government’s physical control of the phone inherently prevented the Defense from accessing the data—which is problematic if the Defense needs it to find exculpatory evidence—there is an issue. CIC has a legal duty to keep its evidence room open to Defense counsel, and when it does, both sides have had equal access to the data.
It is important to distinguish access from intelligence. Having more knowledge or being more skilled—such as the Defense possessing the knowledge of how to access the phone data—does not mean the Government lacked legal access. The Government lacked the smarts to extract the data in its current form, and this is neither the Defense’s fault nor its concern.
More importantly, CAAF’s majority refused to address the real error, considering the case only under discovery rules. CAAF failed to address the trial court’s error in ordering SSG Secord to provide access to his phone so the Defense could obtain what it believed to be exculpatory evidence.
In doing so, CAAF buries its head and fails to address the issue that would expose the true inequities in what CIC does every day. In a case I tried several years ago, a military unit kept a client’s phone locked in the supply cage for months while he was in pre-trial confinement. He was allowed unfettered access to his own phone when he was brought back to the unit during his Article 32 hearing. Several weeks later, we asked the unit to ship the phone to counsel (with the client’s permission) to retrieve exculpatory text messages. Instead, trial counsel sent CIC in to seize the phone, specifically to prevent the Defense from accessing it - they even stated that was there intended purpose. Eventually, the charges were disposed of administratively, in part because of CIC’s blatantly unconstitutional seizure and motions that followed.
In Secord, by seizing the phone and preventing the Defense from accessing it, the Government is excluding the Defense from the evidence. The one criticism of the Defense in this case is that it should have placed a proffer on the record of the exculpatory evidence it believed it would find on the phone. The proffer could have been sealed and reviewed in camera - they did not even have to share it with the Government. I understand the rush of trial prevents even the best advocates from seeing 10 steps down the road into the appellate process, especially given that the motion was a discovery motion. Still, a rule of thumb is to make a proffer if you can and to litigate in trial with an eye for the appellate record. A proffer is not evidence, and the Government may not use it as such.
The Government does not have the right to demand and compel a Defendant to incriminate himself. Period. It is well-settled law that asking a Defendant to provide the passcode to a cell phone is covered by the 5th Amendment (United States v. Painter, 2020 CCA LEXIS 474 at 35). Likewise, ordering counsel to conduct trial preparation in full view of opposing counsel is unconstitutional.
Cell phones are unique, and the law needs to evolve with them. The Supreme Court recognized this in Carpenter v. United States, 585 U.S. 296 (2018), when it protected individuals’ privacy in their cell phone location data. If the Government cannot compel a passcode from a service member, it should not be allowed to block access to the cell phone when the Defendant rightly declines to provide it.
Conclusion
CAAFs’ holding puts the Government and Defense in a game of Russian roulette: turn over the passcode without knowing whether equal access will give the client the exculpatory evidence they need or strengthen the Government’s case by providing access to inculpatory data. Once the phone is unlocked, Pandora’s Box is opened, and everything comes out. This gamble is both unfair and unconstitutional. I hope that Secord pushes the case forward for review by the Supremes, who, ironically, appear to be more tech-savvy than the CAAF.