UNITED STATES, Appellee 

v. 

Eric M. McNUTT, Private (E-2) 

U.S. Army, Appellant 

No. 04-0295 

Crim. App. No. 20020022 

United States Court of Appeals for the Armed Forces 

Argued November 8, 2004 

Decided September 27, 2005 

GIERKE, C.J., delivered the opinion of the Court, in which 

EFFRON and ERDMANN, JJ., joined. CRAWFORD and BAKER, JJ., each 

filed a separate opinion, concurring in part and dissenting in 

part. 

Counsel 

For Appellant: Captain Eric D. Noble (argued); Colonel Mark 

Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G. 

Lambert (on brief); Colonel Robert D. Teetsel and Captain Terri 

J. Erisman. 

For Appellee: Captain Timothy D. Litka (argued); Colonel Steven 

T. Salata, Lieutenant Colonel Theresa A. Gallagher, and 

Lieutenant Colonel Mark L. Johnson (on brief); Lieutenant 

Colonel Margaret B. Baines. 

Military Judge: Robert L. Swann 

This opinion is subject to revision before final publication. 
United States v. McNutt, No. 04-0295/AR 

2

Chief Judge GIERKE delivered the opinion of the Court. 

Following the trial of Private Eric M. McNutt, the military 

judge met with defense and Government counsel to critique their 

performance, in what is often called a “Bridging the Gap” 

session.1 During that session, the military judge voluntarily 

disclosed how he determined the length of Appellant’s sentence. 

The military judge explained that he sentenced Appellant to 

seventy days of confinement rather than sixty days because he 

was aware of the correctional facilities’ policy of granting 

five days of confinement credit per month for sentences that 

include less than twelve months of confinement.2 The United 

States Army Court of Criminal Appeals affirmed Appellant’s 

sentence,3 finding that the military judge’s knowledge about the 

Army policy was extraneous but properly within the common 

knowledge of a military judge and that Military Rule of Evidence 

 

1

 “Bridging the Gap” sessions, common in Army practice, are posttrial meetings intended to be used as professional and skill 

development for trial and defense counsel. See United States v. 

Copening, 34 M.J. 28, 29 n.* (C.M.A. 1992). 

2

 Therefore, we granted review of the following issue: 

Whether the military judge erred in considering the 

collateral administrative effect of the Army Regional 

Correctional Facilities’ policy of granting a service 

member five days of confinement credit per month for 

sentences which include less than twelve months of 

confinement in adjudging Appellant’s sentence. 

60 M.J. 122 (C.A.A.F. 2004) (order granting review). 

3

 United States v. McNutt, 59 M.J. 629 (A. Ct. Crim. App. 2003).
United States v. McNutt, No. 04-0295/AR 

3

(M.R.E.) 606(b) did not provide a basis for impeaching 

Appellant’s sentence.4

 

We hold that the military judge improperly considered the 

collateral administrative effect of the “good-time” policy in 

determining Appellant’s sentence and this error prejudiced 

Appellant. Accordingly, the decision of Army Court of Criminal 

Appeals is reversed as to sentence and the case is remanded to 

that court to provide the appropriate relief in light of 

Appellant’s improper confinement for ten days. 

BACKGROUND

 Appellant was stationed at Fort Campbell, Kentucky. On 

January 8, 2001, Appellant left his unit without permission and 

remained absent until February 2, 2001. On February 20, 2001, 

Appellant again absented himself without authority and returned 

to his hometown of Belton, Missouri. About a month later, he 

surrendered to military authorities on March 19, 2001, at Fort 

Campbell, Kentucky. Appellant remained under military control, 

awaiting disposition, until he absented himself without 

authority a third time on April 27, 2001. He was absent until 

 

4

 Accordingly, we also granted review of this issue: 

Whether the Army Court of Criminal Appeals erred in holding 

that there was no evidence of extraneous prejudicial 

information improperly brought to the attention of the 

sentencing authority and no basis for impeaching 

Appellant’s sentence under Mil. R. Evid. 606(b). 

60 M.J. 122 (C.A.A.F. 2004)(order granting review). 
United States v. McNutt, No. 04-0295/AR 

4

he was apprehended at his house in Belton by the County Sheriff 

on December 5, 2001. Appellant was charged with one 

specification of desertion terminated by apprehension, and two 

specifications of unauthorized absence, in violation of Articles 

85 and 86 of the Uniform Code of Military Justice (UCMJ).5 

Pursuant to Appellant’s pleas, the military judge found him 

guilty and sentenced Appellant to confinement for seventy days, 

a bad-conduct discharge, forfeiture of $500 pay per month for 

three months, and reduction to pay grade E-1. 

 After Appellant’s court-martial, Captain (Cpt) Shahan, 

Appellant’s trial defense counsel, submitted a letter to the 

convening authority pursuant to Rule for Courts-Martial (R.C.M.) 

1105, asserting that the military judge erred in formulating the 

length of confinement.6

 In the letter, Cpt Shahan asserted that 

during the “Bridging the Gap” session with counsel after 

Appellant’s sentencing, the military judge told trial counsel 

and defense counsel that he wanted to ensure Appellant actually 

 

5

 10 U.S.C. §§ 885, 886 (2002). 

6

 See R.C.M. 1105, 1107 (convening authority must consider 

clemency matters submitted by accused before taking final action 

on sentence). 
United States v. McNutt, No. 04-0295/AR 

5

served sixty days of confinement.7

 Cpt Shahan asked the 

convening authority to “disapprov[e] 10 days of the adjudged 

confinement” because the military judge had inappropriately 

considered “good-time” credit when determining Appellant’s 

sentence. Specifically, the defense counsel averred: 

After the guilty plea, the military judge informed the 

trial counsel, Cpt Gisela Westwater, and me, that the 

reason he sentenced Pvt McNutt to 70 days was because he 

knew Pvt McNutt would receive 10 days of “good time” 

credit, and that he wanted to be sure that Pvt McNutt 

served 60 actual days. 

Further, Cpt Shahan stated that “[i]t is common knowledge in the 

military justice system that the Army Regional Corrections 

Facilities (RCFs) credit service members with 5 days per month 

of ‘good time’ on sentences of 12 months or less.” Cpt Shahan 

asserted that, based on United States v. McLaren,8 it is improper 

for the military judge or panel members to consider collateral 

issues such as “good-time” credit. 

In affirming the findings and sentence, the Army Court of 

Criminal Appeals noted that Appellant could not impeach his 

sentence because none of the three exceptions to the M.R.E. 

 

7

 The military judge’s statements made during the “Bridging the 

Gap” session were first asserted by Appellant in his clemency 

submission to the convening authority. Appellate Government 

counsel did not deny that the statements were made when the case 

was before the Army Court of Criminal Appeals, a fact 

specifically noted by that court. See McNutt, 59 M.J. at 631. 

And now before our Court, the unrebutted statements continue to 

be unchallenged by appellate Government counsel. 

8

 34 M.J. 926 (A.F.C.M.R. 1992). 
United States v. McNutt, No. 04-0295/AR 

6

606(b)9

 applied. Specifically, the lower court stated that if 

the military judge “improperly considered extraneous 

information,” then prejudice towards Appellant would be 

presumed. The Army Court opined that because the Army 

regulation regarding “good-time” credit was “not mentioned at 

trial, admitted into evidence, or judicially noticed,” the 

information that the military judge relied on was “extraneous.”10 

However, the lower court then concluded that knowledge of the 

Army’s “good-time” policy was within the general and common 

knowledge any military judge brings to deliberations.11 

Therefore, because the military judge did not rely on “improper” 

extraneous information, there was “no basis for impeaching 

[A]ppellant’s otherwise lawful and appropriate sentence.”12 

 

9

 M.R.E. 606(b) prohibits a court member from testifying as to 

any matter or statement made during deliberations or to the 

effect of anything upon the member’s mind, emotions, or mental 

processes in deciding the findings or sentence, with three 

exceptions. “[A] member may testify on the question whether 

extraneous prejudicial information was improperly brought to the 

attention of the members . . . , whether any outside influence 

was improperly brought to bear upon any member, or whether there 

was unlawful command influence.” 

10 McNutt, 59 M.J. at 632. 

11 Id. 12 Id. at 633. 
United States v. McNutt, No. 04-0295/AR 

7

DISCUSSION

I. The military judge erred in considering the Army’s good-time 

policy in assessing Appellant’s sentence

 In general, “‘courts-martial [are] to concern themselves 

with the appropriateness of a particular sentence for an accused 

and his offense, without regard to the collateral administrative 

effects of the penalty under consideration.’”13 Therefore, when 

military judges are asked by members about possible collateral 

consequences of a particular sentence, the “appropriate reply 

ordinarily is to reaffirm the idea that collateral consequences 

are not germane.”14 The reason for the preference is that “the 

purported effect of a collateral [consequence] cannot be used to 

becloud the question of an accused’s guilt or innocence.”15 To 

ignore it “would mean that [military judges] would be required 

to deliver an unending catalogue of administrative information 

 

13 United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988) 

(quoting United States v. Quesinberry, 12 C.M.A. 609, 612, 31 

C.M.R. 195, 198 (1962)). 

14 Id. (stating that the impact of a punitive discharge on 

retirement benefits is a collateral consequence that should not 

influence the members’ decision on the accused’s sentence). See 

also United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 

176, 180 (1959) (stating that the sentences in other cases 

cannot be given to court-martial members for comparative 

purposes). 

15 Quesinberry, 12 C.M.A. at 612, 31 C.M.R. at 198 (holding that 

members should not be informed of the specific consequences of a 

bad-conduct discharge). 
United States v. McNutt, No. 04-0295/AR 

8

to court members. . . . [T]he waters of the military sentencing 

process should [not] be so muddied.”16

 Although military judges and members should not generally 

consider collateral consequences in assessing a sentence, this 

is not a “bright-line rule.”17 In certain circumstances, 

therefore, it may be appropriate for the military judge to 

instruct on collateral matters. 18 In deciding whether the 

military judge erred in giving such instructions, we will take a 

flexible approach focusing on the military judge’s 

responsibility to give “legally correct instructions that are 

tailored to the facts and circumstances of the case.”19 For 

example, the “availability of parole and rehabilitation programs 

 

16 Id. 17 United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F. 2000). 

18 See, e.g., United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 

2001) (stating that military judges should “instruct on the 

impact of a punitive discharge on retirement benefits, if there 

is an evidentiary predicate for the instruction and a party 

requests it. . . . They may deny a request for such an 

instruction only in cases where there is no evidentiary 

predicate for it or the possibility of retirement is so remote 

as to make it irrelevant to determining an appropriate 

sentence.”). Additionally, instructions are routinely given on 

the other consequences of a punitive discharge. See, e.g., 

United States v. Rasnick, 58 M.J. 9, 10 (C.A.A.F. 2003) 

(affirming the military judge’s refusal to instruct the members 

that a punitive discharge was an “ineradicable stigma,” where he 

“adequately advised the members that a punitive discharge was a 

severe punishment, that it would entail specified adverse 

consequences, and that it would affect Appellant’s future with 

regard to his legal rights, economic opportunities, and social 

acceptability” (internal quotations omitted)). 

19 Duncan, 53 M.J. at 499 (internal quotations and citation 

omitted). 
United States v. McNutt, No. 04-0295/AR 

9

are issues of general knowledge and concern, and as such they 

may be instructed upon, especially when requested by the 

members.”20 However, in such a situation, the military judge 

should then instruct the members that although the possibility 

of parole exists in the military justice system, “they could not 

consider it in arriving at an appropriate sentence for [the] 

appellant.”21

 Similarly, in this case, the general preference for 

prohibiting consideration of collateral consequences is 

applicable to the military judge’s consideration of the Army 

“good-time” credits.22 Each accused deserves individualized 

consideration on punishment. Thus, “proper punishment should be 

determined on the basis of the nature and seriousness of the 

offense and the character of the offender, not on many variables 

not susceptible of proof.”23 In other words, sentence 

determinations should be based on the facts before the military 

judge and not on the possibility that Appellant may serve less 

time than he was sentenced to based on the Army’s policy. 

Moreover, “good-time” credit is awarded as a consequence of the 

 

20 Id. at 500 (citing United States v. Greaves, 46 M.J. 133, 139 

(C.A.A.F. 1997)). 

21 Id.

22 See United States v. Howell, 16 M.J. 1003 (A.C.M.R. 1983) 

(Naughton, J., concurring) (finding it improper for the trial 

counsel to argue that the appellant would not serve the full 

confinement time adjudged by the members because of “good-time” 

credit). 

23 Mamaluy, 10 C.M.A. at 107, 27 C.M.R. at 181. 
United States v. McNutt, No. 04-0295/AR 

10

convicted servicemember’s future behavior –- behavior that may 

or may not take place. Therefore, the possibility of “goodtime” credit should not be considered by the members or the 

military judge when deciding what sentence is appropriate. 

We agree with the lower court that, practically, the 

military judge could not be precluded from being aware of the 

Army policy because it falls within his general knowledge of the 

legal system. But this does not mean that he should consider it 

in determining Appellant’s sentence. We hold that the military 

judge erred in considering the Army’s “good-time” credit policy 

when he assessed Appellant’s sentence. 

II. Military Rule of Evidence 606(b) does not apply to military 

judges

The Army Court of Criminal Appeals appropriately cautioned 

that “the core of the deliberative process remains privileged, 

and military judges should refrain from disclosing information 

during ‘Bridg[ing] the Gap’ sessions concerning their 

deliberations, impressions, emotional feelings, or the mental 

processes used to resolve an issue before them.”24 However, the 

Army Court affirmed Appellant’s sentence by relying on M.R.E. 

 

24 McNutt, 59 M.J. at 633.
United States v. McNutt, No. 04-0295/AR 

11

606(b) and our holding in United States v. Straight.25 We 

conclude that M.R.E. 606(b) applies to court members only and, 

thus, does not apply to protect the statement of the military 

judge in this case when he voluntarily disclosed that he 

considered improper information in determining Appellant’s 

sentence.26 

A. The plain meaning of M.R.E. 606(b)

The task of determining the meaning of M.R.E. 606(b) and to 

whom it should apply begins with a reading of the plain language 

of the rule.27 Notably, the plain meaning of M.R.E. 606 is that 

it applies to the “competency of [a] court member as [a] 

witness.” M.R.E. 606(b) does not include any language that 

indicates it applies to a trial by military judge alone, and the 

discussion following the rule does not address the issue.28 As 

 

25 42 M.J. 244, 250-51 (C.A.A.F. 1995)(holding that members’ 

statements made during deliberations about the possibility that 

the accused might be paroled did not fall into one of the 

exceptions to the M.R.E. 606(b) prohibition and thus, they were 

not competent to impeach the accused’s sentence). 

26 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. 

27 See United States v. Ron Pair Enter., 489 U.S. 235, 241 (1989) 

(“The task of resolving the dispute over the meaning of [a 

statute] begins where all such inquiries must begin: with the 

language of the statute itself . . . . [I]t is also where the 

inquiry should end, for where . . . the statute’s language is 

plain, ‘the sole function of the courts is to enforce it 

according to its terms.’” (citations omitted)). 

28 See Straight, 42 M.J. at 250-51. 
United States v. McNutt, No. 04-0295/AR 

12

the Supreme Court has repeatedly emphasized, “[i]t is well 

established that ‘when 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.’”29 “Had the drafters of the rule wanted to use 

broader language such as ‘trier of fact’ [to include judges, 

juries, and arbiters], they could have easily done so.”30 

Moreover, M.R.E. 605 explicitly addresses the competency of 

a military judge as a witness. Similar to subsection (a) of 

M.R.E. 606, M.R.E. 605(a) states that a military judge may not 

testify as a witness at a court-martial over which he is 

presiding. But M.R.E. 605 does not include a subsection (b) 

that mirrors the language in M.R.E. 606(b), which protects 

members’ deliberations. “Given the absence of such a provision, 

it can be inferred that the drafters of said rule understood 

that there were certain extraordinary situations in which a 

 

29 Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) 

(quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, 

N.A., 530 U.S. 1, 6 (2000)). Principles of statutory 

construction are used in construing the Manual for CourtsMartial, United States. United States v. Lucas, 1 C.M.A. 19, 

22, 1 C.M.R. 19, 22 (1951). 

30 Stewart v. Southeast Foods, Inc., 688 So.2d 733, 735-36 (Miss. 

1996) (holding that a reading of Miss. R. Evid. 606(b), which is 

substantially similar to Fed. R. Evid. 606(b), indicates that 

the rule applies to jurors only and that Miss. R. Evid. 605 

applies to judges). 
United States v. McNutt, No. 04-0295/AR 

13

judge may be called upon to explain his verdict or rulings in a 

subsequent proceeding.”31

B. An analysis of the precedent applying M.R.E. 606(b)

In deciding that M.R.E. 606(b) does not apply to protect 

the voluntary disclosure of the military judge in this case, we 

are faced with precedent from this Court that is inconsistent 

with our holding.32 We conclude that Rice and Gonzalez

misconstrued the case law cited to support the holdings in those 

cases. Additionally, the circumstances of the cases that this 

Court relied on in Rice and Gonzalez are factually 

distinguishable from the situation in this case. To the extent 

that Gonzalez and Rice conflict with the holding of this case, 

we now overrule them. 

In asserting that the appellant was attempting to 

“accomplish the precise inquiry into the trial judge’s mind 

which is prohibited by Mil. R. Evid. 606,”33 the Court in Rice 

 

31 Id. at 735. 

32 See United States v. Rice, 25 M.J. 35, 37-38 (C.M.A. 1987) 

(holding that the military judge did not impermissibly rely on 

extraneous prejudicial information in sentencing the accused to 

life imprisonment); United States v. Gonzalez, 42 M.J. 373, 374-

75 (C.A.A.F. 1995) (per curiam) (following Rice to conclude that 

the military judge’s statement concerning his deliberative 

processes at the accused’s original sentencing could not be 

considered during a post-trial inquiry into the basis for the 

sentence he imposed). 

33 Rice, 25 M.J. at 38.
United States v. McNutt, No. 04-0295/AR 

14

cited Washington v. Strickland,34 and Proffitt v. Wainwright.35 

In Washington, a U.S. district court denied habeas relief due, 

in part, to the testimony from the state trial judge who imposed 

the death penalty.36 The Fifth Circuit held that, although the 

lower court could properly consider the testimony of the trial 

judge to the extent it contains personal knowledge of historical 

facts or expert opinion, “the portion of [the judge’s] testimony 

in which he explained his reasons for imposing the death 

sentence and his probable response to the evidence adduced at 

the habeas hearing is inadmissible evidence that may not be 

considered by the [lower] court.”37 

The Fifth Circuit based its holding on two cases. One was 

the Supreme Court’s 1904 decision in Fayerweather v. Ritch,38

where the Court held: 

[T]he testimony of the trial judge, given six years after 

the case had been disposed of, in respect to matters he 

considered and passed upon, was obviously incompetent. 

True, the reasoning of the court for the rule [prohibiting 

testimony by jurors] 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 of 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 

 

34 693 F.2d 1243, 1263 (5th Cir. 1982) (en banc), rev’d on other 

grounds, 466 U.S. 668 (1984). 

35 685 F.2d 1227, 1255 (11th Cir. 1982). 

36 693 F.2d 1243. 

37 Id. at 1263. 

38 195 U.S. 276 (1904).
United States v. McNutt, No. 04-0295/AR 

15

overthrown or limited by the oral testimony of a judge or 

juror of what he had in mind at the time of the decision.39

In Fayerweather, the judge was being asked to provide testimony 

about his thought process years after the trial. But in the 

present case, the military judge volunteered his explicit 

statement that he based his sentence in part on collateral 

consequences immediately following the trial. Therefore, this 

is not a situation where Appellant is trying to “disturb” his 

trial’s outcome or have it “overthrown or limited” by asking the 

military judge to disclose his thoughts when he determined 

Appellant’s sentence that would otherwise never have been 

disclosed.40

The other case that the Fifth Circuit cited to support its 

holding in Washington is United States v. Crouch.41 In that 

case, the Fifth Circuit stated that just as a court will not 

review the motives of a legislature in enacting a law, a 

“judge’s statement of his mental processes is absolutely 

unreviewable.”42 Crouch cites the excerpt from Fayerweather

quoted above and United States v. Morgan,43 where the Supreme 

Court stated it could not review the mental processes of the 

Secretary of Agriculture in proceedings held to determine the 

 

39 Id. at 306-07 (emphasis added). 

40 Id.

41 566 F.2d 1311 (5th Cir. 1978). 

42 Id. at 1316. 

43 313 U.S. 409, 422 (1941). 
United States v. McNutt, No. 04-0295/AR 

16

reasonableness of rates charged by market agencies at 

stockyards. The facts of Morgan -- where the Supreme Court 

declined to delve into the mental processes of the Secretary of 

Agriculture in an attempt to determine if the rates he set were 

reasonable -- are clearly factually distinguishable from the 

situation in this case. 

Fayerweather and Crouch are the same two cases that the 

Eleventh Circuit cited in Proffitt.44 In reversing the district 

court’s denial of appellant’s habeas claim in part, the Eleventh 

Circuit held that the lower court erred in relying on the trial 

judge’s post-trial statements that he did not use an expert’s 

report in determining the sentence.45 The court stated that 

“post-decision statements by a judge or juror about his mental 

processes in reaching [a] decision may not be used as evidence 

in a subsequent challenge to the decision.”46 The situation in 

Proffitt is similar to the other cases that are concerned with 

protecting judges’ mental processes from being called into 

question long after the end of the trial. Their rationale does 

not apply where, as in this case, immediately after trial the 

military judge voluntarily disclosed the information he 

considered in making a sentence determination. 

 

44 685 F.2d at 1255. 

45 Id. 46 Id. 
United States v. McNutt, No. 04-0295/AR 

17

Significantly, the Supreme Court has not explicitly held 

that Fed. R. Evid. 606(b)47 applies to trial judges, and the rule 

is cited by only one of the cases discussed above. In 

Washington, the Fifth Circuit cited Fed. R. Evid. 606(b) and 

stated that its underlying policy considerations apply equally 

to judges.48 The Fifth Circuit then provided an in-depth 

discussion of the policy reasons why a judge’s deliberative 

process should not be revealed.49 Most, if not all, of the 

policy reasons are inapplicable to the situation in this case, 

thus providing further support for our holding that the military 

judge’s voluntary disclosure in this case should not be 

protected by M.R.E. 606(b). 

First, the Fifth Circuit stated that the testimony of the 

trial judge “poses special risks of inaccuracy” because it is 

“often given several years after the fact and a judge is 

unlikely to be able to reconstruct his thought processes 

accurately over such a span of time.”50 Second, “the finality 

and integrity of judgments would be threatened by a rule that 

enables parties to attack a judgment by probing the mental 

 

47 Fed. R. Evid. 606(b) is virtually identical to M.R.E. 606(b), 

except that it does not include the exception for “unlawful 

command influence” that is included in M.R.E. 606(b). 

48 693 F.2d at 1263. 

49 Id. Some of these policy reasons were addressed by the Air 

Force Court of Military Review in United States v. Rice, 20 M.J. 

764, 768 (A.F.C.M.R. 1985), aff’d, 25 M.J. 35, 37-38 (1987), 

when it held that M.R.E. 606(b) applies to military judges. 

50 Washington, 693 F.2d at 1263. 
United States v. McNutt, No. 04-0295/AR 

18

processes of a judge.”51 Also, a “probing of the mental 

processes of a state judge would exacerbate certain problems 

that are already inherent in the habeas corpus context,” such as 

the “tendency of the habeas proceeding to detract from the 

perception of the trial of a criminal case in state court as a 

decisive and portentous event” when a trial judge is “called 

into federal court several years later to recreate his thought 

processes at the criminal trial.”52 Finally, the “friction 

between the state and federal systems of justice can hardly be 

alleviated by a rule that permits the parties to interrogate a 

state judge in federal court regarding the basis for his 

decision.”53 

The first and fourth reasons are clearly inapplicable to 

the military judge’s disclosure in this case. The first reason 

does not apply because the military judge explicitly stated his 

thought process in the “Bridging the Gap” session immediately 

after trial; this is not a case where the judge is being asked 

years afterwards to recall his thought processes. The fourth 

policy reason is inapplicable because the military justice 

system is one system, rendering the friction between the federal 

and state systems irrelevant. 

 

51 Id. 52 Id. (internal quotations and citations omitted). 

53 Id.
United States v. McNutt, No. 04-0295/AR 

19

The second and third factors –- which we will label the 

“finality” factors –- arguably support the conclusion that a 

judge’s mental processes should be protected. But the situation 

in this case, where the military judge voluntarily disclosed 

immediately after trial that he considered collateral 

information in determining Appellant’s sentence, is completely 

different from an appellant’s request years after a trial to 

explore the deliberative process of the judge.54 Additionally, 

in this case, neither the military judge nor the Government 

disputes the existence of the statement concerning the military 

judge’s basis for assessing Appellant’s sentence. Thus, this 

case is also distinguishable from cases where the military judge 

disputes he ever made the statements the appellant later claims 

demonstrate prejudice.55 

In conclusion, the plain meaning of M.R.E. 606 limits its 

application to court members. When read in conjunction with 

M.R.E. 605, it becomes even more apparent that military judges 

are excluded from its scope. Moreover, to read the case law as 

protecting all statements made by a military judge –- such as 

 

54 See Fayerweather, 195 U.S. at 306-07. See also Morrison v. 

Kimmelman, 650 F. Supp. 801, 805-07 (D.N.J. 1986) (holding that, 

on remand, the State could not elicit evidence from the trial 

judge, sitting as trier of fact, concerning how he weighed the 

evidence and whether, absent a specific type of evidence, he 

would have convicted the petitioner). 

55 See United States v. Lentz, 54 M.J. 818, 820 (N-M. Ct. Crim. 

App. 2001). 
United States v. McNutt, No. 04-0295/AR 

20

the one made here –- would not only further misconstrue the 

precedent relied upon in our decisions in Rice and Gonzalez, but 

would also thwart the well-settled rules against considering 

collateral information in assessing an accused’s sentence. 

Therefore, we hold that the military judge erred in considering 

the Army’s policy of “good-time” credit when assessing 

Appellant’s sentence. Furthermore, we hold that the Army Court 

of Criminal Appeals erred in relying on M.R.E. 606(b) to protect 

the statements voluntarily disclosed by the military judge. To 

the extent that our decisions in Rice and Gonzalez conflict with 

this decision, they are overruled. 

When the military judge’s statements are considered, it is 

apparent that he lengthened Appellant’s sentence by ten days for 

an improper reason. This error establishes prejudice under 

Article 59(a), UCMJ.56 The Army Court of Criminal Appeals is 

best positioned to determine the appropriate remedy for 

Appellant being improperly confined for ten days. 

DECISION

Accordingly, we affirm that portion of the lower court’s 

decision affirming the findings. We set aside the portion of 

the lower court’s decision affirming the sentence and remand the 

case to the Army Court of Criminal Appeals. That court shall 

perform a new Article 66(c), UCMJ, sentence appropriateness 

 

56 10 U.S.C. § 850(a)(2000). 
United States v. McNutt, No. 04-0295/AR 

21

review in light of Appellant’s improper confinement for ten days 

and determine an appropriate remedy. 
United States v. McNutt, No. 04-0295/AR 

CRAWFORD, Judge (concurring in part and dissenting in 

part): 

“[H]ard cases, it is said, make bad law.”1 This frequently 

quoted observation has served as a warning for over 300 years to 

judges on courts of law who would modify or reject a rule of law 

for the benefit of an individual cause, rather than reach a 

result they deem equitably unattractive. Despite this warning, 

the majority rejects decades of military practice and precedent 

to reach the result they deem equitable –- a result that may 

seem fair but may also qualify as the outcome Lord Argyll warned 

against. 

We profess to be a Nation that adheres to the rule of law. 

Because I believe that to be true, I prefer to follow the rule 

of law, even when it produces a “hard” result. In this case, I 

would apply our precedent, leaving unaltered the very nature of 

trial by military judge alone, and affirm not only the sentence 

in this case, but the principles this Court and all military 

justice practitioners have followed since 1969. For those 

reasons, I must respectfully dissent from the result and from 

the majority’s new rules restricting consideration by military 

judges of collateral consequences during their deliberations on 

sentencing. 

 

1

 Ex parte Long, 3 W.R. 18, 19 (1854). 
United States v. McNutt, No. 04-0295/AR 

2

As to the majority’s return to the plain language of 

Military Rule of Evidence (M.R.E.) 606(b), however, I concur and 

applaud the majority’s willingness to correct a prior instance 

of judicial rulemaking by this Court. 

FACTS AND FACT FINDING 

If we were to disregard, for the moment, the Military Rules 

of Evidence, the Rules for Courts-Martial (R.C.M.), and the 

facts as found by the court below, the “facts” of this case 

would be unappealing, from the Government’s standpoint. These 

“facts” would establish that the military judge had discussed 

his deliberative process in an informal setting, that he had 

departed from established practice to apply a service policy not 

formally introduced to the proceedings, and that he had 

increased Appellant’s sentence based on that policy. 

To the contrary, the record and the factual findings of the 

court below establish only that Appellant’s trial defense 

counsel timely complained to the convening authority that the 

military judge had unfairly sentenced Appellant to an additional 

ten days of confinement by considering what counsel described as 

a well known practice of “Army Regional Corrections Facilities.” 

The Army Court of Criminal Appeals also noted defense counsel’s 

assertion that the military judge had made the post-trial 

statement and that this assertion was unrebutted by the 

Government. To support Appellant’s claim, however, there is not 
United States v. McNutt, No. 04-0295/AR 

3

now, nor has there ever been, any competent evidence of the 

military judge’s statement. As the court below noted, its task 

was to “ultimately conclude [whether] the statement is competent 

evidence that the military judge improperly considered 

extraneous information.” United States v. McNutt, 59 M.J. 629, 

632 (A. Ct. Crim. App. 2003). It then implicitly assumed the 

statement had been made for the purpose of concluding that, 

“there is no competent evidence of extraneous prejudicial 

information that was improperly brought to the attention of the 

sentencing authority.” Id. at 633. It so concluded, in part, 

because the policy in question is common knowledge to military 

judges. As noted below, it is also one frequently and 

historically applied to the benefit of servicemembers who have 

elected to be sentenced by military judge alone. 

What the court below considered arguendo, this Court now 

finds as fact: that the statement was made and that there was

an improper consideration of collateral matters. 

In United States v. Ginn,2

 we recognized both the authority 

and the limitations of Article 66 courts when they address 

issues raised in post-trial affidavits without remand for a 

DuBay3 hearing on disputed factual issues. As we are not 

empowered by statute to make factual findings, our authority is 

 

2 47 M.J. 236 (C.A.A.F. 1997). 

3

 United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). 
United States v. McNutt, No. 04-0295/AR 

4

certainly less and our limitations more stringent. Nonetheless, 

the majority decides that this Court can award relief on the 

basis of an unrebutted, unsworn, post-trial factual assertion by 

a defense counsel to a convening authority. Moreover, without 

reference to a DuBay hearing, or even a remand to the court 

below, the majority finds that the defense counsel’s statement 

must be true because the military judge did not rebut that 

statement to the convening authority, notwithstanding the 

precedent of this Court suggesting that such a rebuttal would 

have been improper,4 and absent any evidence that the military 

judge has ever been made aware of the “statement.”5 We are not 

empowered by Congress to find such facts. Consequently, even if 

the majority now overrules both Rice and Gonzalez6

 and concludes 

that M.R.E. 606(b) does not apply to military judges, unless we, 

like the court below, address this issue arguendo, we must 

remand for a DuBay hearing. 

LAW, PRECEDENT, AND PRACTICE 

Trial, including sentencing, before military judge alone is 

different than trial before members. In United States v. 

Hannan,7 this Court not only condoned, but encouraged military 

 

4

 United States v. Rice, 25 M.J. 35 (C.M.A. 1987)(applying M.R.E. 

606(b) to military judges). 

5

 Authentication (R.C.M. 1104) precedes submission of matters by 

the accused (R.C.M. 1105(c)(1)). 

6 United States v. Gonzalez, 42 M.J. 373 (C.A.A.F. 1995). 

7

 17 M.J. 115 (C.M.A. 1984). 
United States v. McNutt, No. 04-0295/AR 

5

judges to know and apply “good-time” policies during their 

sentencing deliberations.8 While not central to the holding of 

that case, the Court clearly recognized not only the relevance 

of such information to military judge sentencing proceedings, 

but affirmed that such knowledge and application is and always 

has been part of the military judge’s function when an accused 

elects “military judge alone” as the sentencing authority: 

Thus, in seeking to arrive at an appropriate sentence, 

Judge Wold properly took into account the rules 

governing parole eligibility. Indeed, military judges 

can best perform their sentencing duties if they are 

aware of the directives and policies concerning goodconduct time, parole, eligibility for parole, 

retraining programs, and the like.9 

Hannan’s failure to elaborate on the mechanism by which 

military judges are properly to consider such information is not 

surprising in light of the overlap created by M.R.E. 201A 

(Judicial Notice of Law) and the principle long embraced by this 

Court that military judges are presumed to know and properly 

apply the law.10 If it becomes error for a military judge to 

apply law (including appropriate regulations) not admitted in 

 

8

 See, e.g., Department of Defense (DOD) Instruction 1325.7, 

Administration of Military Correctional Facilities and Clemency 

and Parole Authority, December 17, 1999, Enclosure 26. It is 

highly likely that this policy is what the military judge relied 

on because it is a subject of instruction for all students at 

the Military Judges’ Course of the U.S. Army Judge Advocate 

General’s Legal Center and School. 

9

 17 M.J. at 123-24. 

10 United States v. Lewis, 12 M.J. 205 (C.M.A. 1982). 
United States v. McNutt, No. 04-0295/AR 

6

evidence and not formally noticed to the parties,11 then what law 

is it that military judges will be presumed to know and properly 

apply? Requiring military judges formally to notice judicially 

all law they consider would hopelessly burden the trial bench 

with identifying and announcing before each ruling or decision, 

all the law the judge intends to consider. 

On a related issue, when an accused elects to be sentenced 

by military judge alone, the military judge, unlike court 

members, is not only permitted to be aware of and consider 

sentences received by similarly situated accuseds, but we have 

repeatedly and recently expressed our expectation that he do so: 

The experienced and professional military lawyers who 

find themselves appointed as trial judges . . . have a 

solid feel for the range of punishments typically 

meted out in courts-martial. . . . We have every 

confidence that this accumulated knowledge is an 

explicit or implicit factor in virtually every case in 

which a military judge imposes sentence. . . .12

That military judges may sometimes consider what court 

members may not is simply not news. As one commentator has 

noted: 

Awareness of the collateral consequences of a courtmartial sentence is yet another area where court 

members lag far behind the military judge. In United 

States v. Griffin, the COMA affirmed the general rule 

that “courts-martial [are] to concern themselves with 

the appropriateness of a particular sentence for an 

 

11 See M.R.E. 201.

12 United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) 

(quoting United States v. Ballard, 20 M.J. 282, 286 (C.M.A. 

1985)). 
United States v. McNutt, No. 04-0295/AR 

7

accused and his offense, without regard to the 

collateral administrative effects of the penalty under 

consideration.” This may deprive the accused of the 

opportunity to present important evidence to the 

members. For example, members may be permitted to 

hear testimony about a rehabilitative program for sex 

offenders at the United States Disciplinary Barracks, 

but not be informed of the sentence length necessary 

for the accused to be incarcerated there. Judges, on 

the other hand, are cognizant of the administrative 

consequences of their sentences and are permitted to 

consider this knowledge in arriving at a proper 

sentence.13

The majority cites Hannan, without quotation, explanation, 

or discussion, as if to dismiss by faint notice Hannan’s 

significance, not only for its holding, but also for its obvious 

value as a historical record of the way military judge alone

cases have been tried since the Military Justice Act of 1968. 

Further ignoring the distinction between sentencing by members 

and sentencing by military judge alone, the majority quotes from 

our prior opinions addressing restrictions on information that 

court members are permitted to consider. Finally, the majority 

overrules those portions of Rice and Gonzales that are 

inconsistent with its opinion, but leaves untouched our 

 

13 Major J. Kevin Lovejoy, Abolition of Court Member Sentencing 

in the Military, 142 Mil. L. Rev. 1, 48-49 (Fall 1993)(internal 

citations omitted). 
United States v. McNutt, No. 04-0295/AR 

8

decisions in Hannan, Lacy, Ballard, and United States v. 

Duncan,14 and many similar opinions. 

Since 1969, our opinions have starkly depicted our 

historically different approach to sentencing by members, as 

opposed to sentencing by military judge alone, and that 

difference has been relied on by defense counsel and their 

clients for decades. For example, defense counsel not 

infrequently advise their clients to elect trial by military 

judge alone when the case presents a legal defense or when 

counsel wishes to argue law to the military judge on findings or 

sentence. This is particularly true when the facts alleged by 

the Government are repugnant and the legal distinctions fine.15 

In trials before military judge alone, military judges are not 

restricted to consideration of only the law presented and argued 

 

14 53 M.J. 494 (C.A.A.F. 2000). In Duncan, we unanimously 

affirmed a military judge’s instruction, over defense objection, 

based on exactly the same Department of Defense Instruction. 

Id. at 498-99. Further, the military judge instructed the 

members, apparently from his own knowledge, on the availability 

of “alcohol and sex offense rehabilitation programs” for the 

accused during his prospective incarceration. Id. 15 “For example, the accused may elect to be tried before a 

military judge alone when the facts and circumstances of the 

case may inflame the passions of a lay jury but not of a 

seasoned jurist.” Joseph L. Falvey Jr., United Nations Justice 

or Military Justice: Which is the Oxymoron? 19 Fordham Int’l 

L.J. 475, 506 (1995). 
United States v. McNutt, No. 04-0295/AR 

9

by counsel, any more than they are restricted in that sense 

while ruling on a matter of law.16 

As noted above, the defense frequently elects trial by 

military judge alone when seeking a measure of predictability in 

sentencing. This predictability exists, in large measure, 

because military judges are aware –- some to the point of 

maintaining meticulous tracking systems -– not only of the 

sentences imposed in similar cases as recorded in reported 

appellate law, but of the sentences they have imposed in prior 

cases under similar circumstances.17 Prohibiting military judges 

from considering such matters during sentence deliberations, on 

the grounds that such matters could not properly be considered 

by members, would be an enormous departure from decades of 

practice with potentially disastrous results, as noted below. 

Just four years ago, we unanimously announced in Duncan

that a military judge may answer, in instructions, the questions 

of court members regarding parole and treatment programs, and 

may do so by “draw[ing] upon a body of information that is 

 

16 This is consistent with federal practice: “[a]ll that the 

procedural rules and the current trend provide is that the court 

itself is free to consult its own sources and to attempt to 

determine the appropriate law on the basis of all available 

statutes, decisions and other sources.” Stephen A. Saltzburg et 

al., Federal Rules of Evidence Manual 129 (7th ed. 1998). 

17 “We have every confidence that this accumulated knowledge is 

an explicit or implicit factor in virtually every case in which 

a military judge imposes sentence . . . .” Lacy, 50 M.J. at 288 

(quoting Ballard, 20 M.J. at 286). 
United States v. McNutt, No. 04-0295/AR 

10

reasonably available and which rationally relates to the 

sentencing considerations in RCM 1005(e)(5).”18 The majority 

announces today that a military judge, sitting alone, may not 

draw on that very same “body of information,” concluding without 

stating that such is now “extraneous prejudicial information” 

improperly considered by the military judge. In sum, the 

majority now chastises Judge Swann for considering and applying 

exactly the same policies that engendered our commendation of 

Judge Wold twenty years ago. It is this selective application, 

and sub silentio rejection, of our precedent that may lead our 

readers to question whether the majority’s position is one of 

law or equity. 

THROWING THE BABY OUT WITH THE BATH WATER? 

In what is no longer a novel approach by this Court, the 

desire for an equitable result in an individual case appears to 

have produced new rules for the conduct of courts-martial. 

Leaving room for exceptions to be applied as equity may require, 

the majority opinion is likely to be read as recognizing two 

“well-settled general rules”: (1) military judges and court 

members are bound by the same rules pertaining to consideration 

of collateral consequences in sentencing; and (2) neither court 

members nor military judges may consider collateral consequences 

in deliberations on sentence: 

 

18 Duncan, 53 M.J. at 500. 
United States v. McNutt, No. 04-0295/AR 

11

 [T]he general preference for prohibiting consideration 

of collateral consequences is applicable to the 

military judge’s consideration of the Army good-time 

credits. Each accused deserves individualized 

consideration on punishment. Thus, “proper punishment 

should be determined on the basis of the nature and 

seriousness of the offense and the character of the 

offender, not on many variables not susceptible of 

proof.” In other words, sentence determinations 

should be based on the facts before the military judge 

and not on the possibility that Appellant may serve 

less time than he was sentenced to based on the Army’s 

policy. Moreover, good-time credits are awarded as a 

consequence of the convicted servicemember’s future 

behavior –- behavior that may or may not take place. 

Therefore, the possibility of good-time credit should 

not be considered by the members or the military judge 

when deciding what sentence is appropriate. 

United States v. McNutt, 61 M.J. __, __ (9-10) (C.A.A.F. 2005) 

(footnotes omitted). There is hardly a word of the majority’s 

reasoning in this case that would not compel application of 

these general rules to all policies on parole, “good time,” 

rehabilitative programs, length-of-confinement thresholds for 

assignment to the various confinement facilities, and other 

collateral consequences associated with confinement. 

Although the confinement at issue in this case is ten days, 

the flaw in the majority’s holding is most apparent when applied 

to the other end of the confinement scale. As the majority 

said: 

{T]his does not mean that he should consider [the 

policy] in determining Appellant’s sentence. We hold 

that the military judge erred in considering the 

Army’s “good-time” credit policy when he assessed 

Appellant’s sentence. 
United States v. McNutt, No. 04-0295/AR 

12

Id. at __ (10). The very same DOD Instruction that the majority 

chastises the military judge for considering is also the 

authority for “good time,” parole, and clemency permitted in 

cases of life without parole, life, and terms of years. In 

fact, as every military judge and every experienced defense 

counsel knows, service members sentenced to life earn no “good 

time,” those sentenced to ten years or more earn ten days per 

month, and so on.19 Even if applied only to “good time,” what 

today’s opinion tells practitioners involved in trials of 

service members with the most to lose is that these things 

cannot be considered by a military judge. “In other words, 

sentence determinations should be based on the facts before the 

military judge and not on the possibility that Appellant may 

serve less time than he was sentenced to based on the Army’s 

policy.”20 Id. at __ (9). No longer will defense counsel be 

permitted to argue that their client should receive a term of 

years, rather than life, so that he or she can “earn” a future 

through “good time” and gain the hope and the motivation to lead 

a law-abiding life. No longer will a military judge be able, as 

Judge Wold did, to consider the collateral impact that a 

sentence of a particular length may have. 

 

19 DOD Instruction 1325.7, Encl. 26. 

20 The majority describes the authority in question as an “Army 

policy,” rather than a DOD Instruction, binding on all military 

confinement facilities. McNutt, 61 M.J. at ___ (9). 
United States v. McNutt, No. 04-0295/AR 

13

As written, however, there seems no reason not to apply the 

majority’s prohibitions to other, even more collateral 

consequences: the potential effect of sexual offender 

registration laws; the potential loss of professional licensure 

or certification; the potential loss of a security clearance, a 

military training program, a promotion, or an assignment; and 

the potential deportation of non-citizen servicemembers.21 Any 

experienced practitioner would certainly question whether the 

majority opinion now precludes from consideration by a 

sentencing authority –- including military judge alone -– a vast 

array of collateral consequences frequently cited by defense 

counsel in arguments to the effect that an accused should be 

punished less harshly because he is being “punished by the 

system.” 

 That being the case, I must question why the majority did 

not also overrule or modify Hannan, Becker, United States v. 

Greaves,22 or United States v. Luster.23 Many may question 

 

21 Oddly, the speculative, collateral consequence of loss of 

retirement benefits is not discussed by the majority, but 

certainly seems threatened unless saved by rule (3). See, e.g., 

United States v. Becker, 46 M.J. 141 (C.A.A.F. 1997). 

22 46 M.J. 133 (C.A.A.F. 1997)(holding that military judge erred 

by not answering questions of members regarding effect on 

potential retirement benefits of BCD upon nineteen years, ten 

months of service).

23 55 M.J. 67 (C.A.A.F. 2001)(holding that military judge erred, 

in trial by members, by excluding evidence of potential lost 

retirement benefits in a case of eighteen years and three months 

of service). 
United States v. McNutt, No. 04-0295/AR 

14

whether the unspoken reason is the existence of a third general 

rule in the majority’s decision: (3) if a collateral consequence 

can be of benefit to the defense case, it may be considered, 

even if it would otherwise violate rule (1) or (2). It is in 

this fashion that the “baby of future Appellants” will be 

separated from the bath water; however, the “baby of the 

Government” winds up in a storm sewer. Since such a rule –- if 

a rule of law -– could only be established by Congress or the 

President, one must presume that this unspoken “rule” is no more 

than the application of equity to avoid a “hard” result. 

CONCLUSION 

 The question of whether the military judge’s knowledge 

and consideration of these collateral consequences 

constitutes “extraneous prejudicial information” or 

“extrajudicial knowledge” was answered by this Court in 

Hannan, 17 M.J. at 123-4: 

Indeed, military judges can best perform their 

sentencing duties if they are aware of the directives 

and policies concerning good-conduct time, parole, 

eligibility for parole, retraining programs, and the 

like. 

In 1986, the now-Chief Trial Judge of the Army observed: 

In his testimony before the Advisory Committee, 

Colonel James G. Garner, the Chief Trial Judge of the 

Army, commented that it was his policy to send a judge 

to visit the various confinement facilities and [to] 

prepare a memorandum detailing what he had learned on 

the visit. Each Army trial judge received a copy of 

the memorandum. Expecting the trial judge to 
United States v. McNutt, No. 04-0295/AR 

15

disregard this knowledge in imposing sentence is 

nonsensical.24 

Before we send sentencing by military judge in the direction of 

the Titanic, we should heed this logic and undertake a much more 

thorough review of history, practice, and precedent. 

 

24 Captain Denise K. Vowell, To Determine an Appropriate 

Sentence: Sentencing in the Military Justice System, 114 Mil. L. 

Rev. 87, 180 n. 489 (1986). 
United States v. McNutt, No. 04-0295/AR 

BAKER, Judge (concurring in part and dissenting in part): 

As the majority has correctly stated, generally “courtsmartial [are] to concern themselves with the appropriateness of 

a particular sentence for an accused and his offense, without 

regard to the collateral administrative effects of the penalty 

under consideration.” United States v. Griffin, 25 M.J. 423 

(C.M.A. 1988) (quoting United States v. Quesinberry, 12 C.M.A. 

609, 612, 31 C.M.R. 195, 198 (1962)). This general rule is not 

dependent on the sentencing forum. Such a rule promotes 

consistency in sentencing for like offenses and is consistent 

with the principle of individualized sentencing based on the 

charged conduct and not based on expectations of future 

behavior. Accordingly, I concur in this section of the majority 

opinion. 

However, I respectfully dissent from the second section of 

the majority opinion addressing the application of Military Rule 

of Evidence (M.R.E.) 606(b) because it is unnecessary to resolve 

this case. 

 M.R.E. 606(b) states: 

Upon an inquiry into the validity of the findings or 

sentence, a member may not testify as to any matter or 

statement occurring during the course of the 

deliberations of the members of the court-martial or, 

to the effect of anything upon the member's or any 

other member's mind or emotions as influencing the 

member to assent to or dissent from the findings or 

sentence or concerning the member's mental process in 

connection therewith, except that a member may testify 
United States v. McNutt, No. 04-0295/AR 

2

on the question whether extraneous prejudicial 

information was improperly brought to the attention of 

the members of the court-martial, whether any outside 

influence was improperly brought to bear upon any 

member, or whether there was unlawful command 

influence. Nor may the member's affidavit or evidence 

of any statement by the member concerning a matter 

about which the member would be precluded from 

testifying be received for these purposes.

 Because this is a case where the military judge voluntarily 

disclosed his thought process to counsel, M.R.E. 606(b)’s 

concern with an inquiry into the confidential deliberations of 

members, or of the military judge to the extent the rule were 

read to apply to factfinders in general, is not implicated. 

Therefore, we need not address the application of M.R.E. 606(b) 

to military judges to resolve this case. Just as we would not 

need to consider the scope of the attorney-client privilege in a 

case involving a voluntary attorney or client disclosure. As a 

threshold matter, we would only need to determine whether any 

possible applicable privilege had been waived. This case does 

not require us to explore the possible scope and limitations of 

M.R.E. 605 or 606. Any judicial privilege that might have 

applied was independently and voluntarily waived by the military 

judge.