U.S. v. Anderson, 51 M.J. 145

First Principles: Constitutional Matters: Confrontation

1. Confrontation Clause reflects the fundamental right of confrontation and cross-examination, an essential and fundamental requirement for a fair trial
2. Confrontation Clause reflects a preference for face-to-face confrontation at trial, normally requiring the defendant’s presence and ability to see the accusatory witness
3. while the right to confrontation is fundamental, it is not absolute, and may be balanced against the government’s strong interest in law enforcement, the state’s compelling interest in the physical and psychological well-being of minor victims, and the societal interest in accurate factfinding; thus, the right to confrontation may yield to an important public policy when the reliability of the testimony at issue is otherwise assured
4. to support decision to limit the right to face-to-face confrontation between an accused and a child victim, the military judge must make a finding of necessity, i.e., that there is a likelihood that the child will suffer at least moderate emotional and mental harm if required to testify in the accused’s presence
5. military judge’s finding of necessity in support of a decision to limit the right to face-to-face confrontation between an accused and a child victim was supported by the record where: (1) expert’s opinion provided a sound, adequate basis upon which the military judge considered whether each child victim could testify and under what circumstances each child could communicate; and (2) the military judge personally observed that child could not even take the witness stand
6. military judge committed no error materially prejudicial to appellant’s substantial rights, and appellant was not improperly denied his right to face-to-face confrontation where: (1) the military judge made a case-specific finding of necessity; (2) the finding of necessity was supported by the record; (3) the impact on the two child witnesses would have been more than de minimis if they were compelled to face the accused; (4) the arrangement of screens and televisions was such that all parties could see each child testify; and (5) the defense was able to conduct full cross-examination while maintaining communications amongst themselves with the accused

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. an expert may: (1) testify about the characteristics of sexually abused children; (2) testify about the characteristics of sexual abused exhibited by an alleged victim; and (3) summarize the available medical evidence and express an opinion that the evidence is consistent or inconsistent with the victim’s allegations of sexual abuse
2. an expert may not express an opinion on the ultimate issue of sexual abuse, nor may the expert serve as a human lie detector and present testimony which is the functional equivalent of the expert’s opinion that the victim should be believed
3. military judge did not abuse his discretion in admitting expert testimony which did not relate opinion that children were, in fact, abused or that appellant did, in fact, commit abuse; expert properly related the elements of the syndrome and indicated which elements were present in the specific case and why those elements were significant; expert was not permitted to assert that victims were credible, and proper curative instructions were given immediately when expert ventured into area of credibility and defense objected
4. expert who had specialized training and experience which would assist the trier of fact clearly qualified as an expert; however, where defense counsel voir dired the witness and stated that the defense has no objection to government’s offer of the witness as an expert in child sexual abuse, any claim that the witness was not qualified was waived

Core Criminal Law Subjects: Evidence: Instructions on

1. military judge did not abuse his discretion by instructing members that certain prior statements could be considered for the truth of the matter therein where the defense highlighted the testimony of the victims by attempting to impeach them with their own prior statements

Core Criminal Law Subjects: Evidence: Prior Consistent Statements

1. MRE 801(d)(1)(B) applies to statements made prior to trial which are consistent with the witness’s testimony and which are offered to rebut an express or implied allegation against the witness of recent fabrication or improper influence or motive, typically introduced to rehabilitate a witness’s credibility
2. where defense cross-examination solicited from witnesses prior statements which affirmed the witness’s trial testimony, the prior statements were substantive evidence which the members could consider for the truth of the matter therein is they chose to believe them; they were not, therefore, classic prior consistent statements as envisioned in MRE 801(d)(1)(B)

Core Criminal Law Subjects: Evidence: Scientific Evidence

1. an expert may: (1) testify about the characteristics of sexually abused children; (2) testify about the characteristics of sexual abused exhibited by an alleged victim; and (3) summarize the available medical evidence and express an opinion that the evidence is consistent or inconsistent with the victim’s allegations of sexual abuse
2. military judge did not abuse his discretion in admitting evidence of Child Abuse Accommodation Syndrome: (1) such evidence is admissible; (2) failure to object waives this alleged defect; and (3) there is no basis to invoke plain error

Core Criminal Law Subjects: Evidence: Waiver

1. expert who had specialized training and experience which would assist the trier of fact clearly qualified as an expert; however, where defense counsel voir dired the witness and stated that the defense has no objection to government’s offer of the witness as an expert in child sexual abuse, any claim that the witness was not qualified was waived

Core Criminal Law Subjects: Evidence: Waiver

1. where defense does not object to certain statements included in the military judge’s instruction permitting those statements to be considered for the truth of the matter stated therein, appellant waived the objection

Core Criminal Law Subjects: Witnesses: Confrontation

1. to support decision to limit the right to face-to-face confrontation between an accused and a child victim, the military judge must make a finding of necessity, i.e., that there is a likelihood that the child will suffer at least moderate emotional and mental harm if required to testify in the accused’s presence
2. military judge’s finding of necessity in support of a decision to limit the right to face-to-face confrontation between an accused and a child victim was supported by the record where: (1) expert’s opinion provided a sound, adequate basis upon which the military judge considered whether each child victim could testify and under what circumstances each child could communicate; and (2) the military judge personally observed that child could not even take the witness stand
3. military judge committed no error materially prejudicial to appellant’s substantial rights, and appellant was not improperly denied his right to face-to-face confrontation where: (1) the military judge made a case-specific finding of necessity; (2) the finding of necessity was supported by the record; (3) the impact on the two child witnesses would have been more than de minimis if they were compelled to face the accused; (4) the arrangement of screens and televisions was such that all parties could see each child testify; and (5) the defense was able to conduct full cross-examination while maintaining communications amongst themselves with the accused

Trial Stages: Appeals: Invited Error / Open Door

1. where defense sought to impeach victims with their own prior statements which affirmed trial testimony, appellant should not be allowed to retreat from his unsuccessful trial strategy; nor should appellant be allowed to fault the military judge for that lack of success

Trial Stages: Appeals: Preservation of Error / Plain Error

1. admission of testimony of government expert on child abuse was not plain error where: (1) any error was not plain and substantial; (2) categorization of appellant as “authority figure” was obvious and harmless; and (3) defense counsel’s objections to expert testimony on credibility were sustained and an instruction was given

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a challenge of instructional error is reviewed using an abuse of discretion standard; a military judge has substantial discretion in deciding what instructions to give
2. military judge’s finding of necessity in support of a decision to limit the right to face-to-face confrontation between an accused and a child victim is a question of fact and will not be reversed unless it is clearly erroneous or unsupported by the record