U.S. v. Kerr, 51 M.J. 401

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. there is a three-pronged test to assess the danger of spillover from either improper joinder or evidence of uncharged acts: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and, (3) whether the findings reflect an impermissible crossover

Trial Stages: Pretrial: Charges and Specifications

1. there is a three-pronged test to assess the danger of spillover from either improper joinder or evidence of uncharged acts: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and, (3) whether the findings reflect an impermissible crossover

Trial Stages: Appeals: Remedies › Sentence reassessment

1. Court of Criminal Appeals did not abuse its discretion in determining that appellant’s sentence would have been the same even if he had been convicted on only one of two virtually identical, multiplicious specifications alleging the same act

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

1. prejudice from an erroneous evidentiary ruling, either admitting government evidence or excluding defense evidence, is evaluated by weighing: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and, (4) the quality of the evidence in question
2. there is a three-pronged test to assess the danger of spillover from either improper joinder or evidence of uncharged acts: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and, (3) whether the findings reflect an impermissible crossover