U.S. v. Barron, 52 M.J. 1

Core Criminal Law Subjects: Witnesses: Experts

1. military judge decides whether a proffered witness is an expert for purposes of MRE’s 702 and 706, and his decision is reviewed for an abuse of discretion
2. while there is some authority that a trial judge may, in an unusual case, disqualify a previously qualified expert witness in the interests of promoting fairness, there is no direct authority requiring a military judge to disqualify a prosecution expert witness on the basis that he or she acted as a de facto prosecutor; thus, military judge did not abuse discretion in refusing to exercise such power where: (1) military judge was sensitive to the fact that this expert’s extra-testimonial conduct might unduly prejudice appellant; (2) the military judge stopped the complained-of note passing; (3) the military judge rebuked the trial counsel and the expert; and, (4) the military judge called the members’ attention to the improper conduct and instructed them to consider it against the expert in evaluating her credibility

Trial Stages: Pretrial: Discovery

1. no further review of appellant’s claim that he was denied MRE 612 materials was warranted where: (1) MRE 612 was not cited as a basis for appellant’s request for discovery; (2) the defense did not establish that the requested notes were used by the expert witness to refresh her memory for purposes of testifying at trial; and, (3) appellant has not asserted on appeal the basis for discovery which was asserted at trial
2. belated access to materials relied upon by prosecution expert in fashioning her direct testimony was not prejudicial where: (1) the defense was afforded a 30-day continuance because of the prosecution’s delayed discovery conduct; (2) the defense elected not to call the expert back to the stand for purposes of cross-examination; (3) the belated discovery was not mentioned on cross-examination of the expert when she re-took the stand as a rebuttal witness; (4) there was no defense motion to strike the expert’s testimony in its entirety because of the delayed discovery; (5) other evidence similar to that contained in the delayed materials was admitted; and, (6) appellant has not indicated how his defense would have been altered if he had received the materials earlier

Trial Stages: Merits: Mistrial

1. a mistrial is a drastic remedy which a judge should only grant in extraordinary cases to prevent manifest injustice to the accused and only when circumstances arise that cast substantial doubt upon the fairness or impartiality of the trial; a curative instruction is the preferred remedy in lieu of declaring a mistrial as long as that instruction avoids prejudice to the accused
2. military judge did not abuse discretion by refusing to grant a mistrial when expert witness engaged in disqualifying actions which indicated bias in favor of the prosecution because: (1) there appears to be no per se rule requiring a mistrial for a prosecution expert who acts as a prosecutor in front of the members; (2) any bias was fully disclosed to members by permitting defense to cross-examine this expert fully to reveal her pro-prosecution conduct; (3) the military judge gave a particularly focused instruction which tended to disparage the expert’s testimony and was generally detrimental to the prosecution’s case; and, (4) the expert’s conduct was not so prejudicial to the defense that curative instructions were unlikely to cure it

Trial Stages: Appeals: Generally

1. failure to attach certain notes as an appellate exhibit did not preclude meaningful appellate review where: (1) there was no request by the defense that the notes be attached to the record; (2) the notes involved discovery of inculpatory matter rather than exculpatory information; and, (3) appellant’s claim of error could be resolved without specific knowledge of their content

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

1. military judge decides whether a proffered witness is an expert for purposes of MRE’s 702 and 706, and his decision is reviewed for an abuse of discretion
2. military judge’s decision whether to disqualify a previously qualified expert witness in the interests of promoting fairness is reviewed for abuse of discretion to determine whether the challenged action is arbitrary, fanciful, clearly unreasonable, or clearly erroneous

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

1. military judge’s decision regarding a motion for a mistrial will be measured for an abuse of discretion