U.S. v. George, 52 M.J. 259

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. where eliciting the basis for an expert opinion will place otherwise inadmissible evidence before the finder of fact, the military judge should apply the balancing test under MRE 403 to determine if the prejudicial impact of the inadmissible evidence outweighs the probative value of showing the basis for the expert opinion

Core Criminal Law Subjects: Witnesses: Experts

1. where eliciting the basis for an expert opinion will place otherwise inadmissible evidence before the finder of fact, the military judge should apply the balancing test under MRE 403 to determine if the prejudicial impact of the inadmissible evidence outweighs the probative value of showing the basis for the expert opinion

Trial Stages: Sentence and Punishment: Evidence

1. during sentencing proceeding for offense of communicating indecent language to a 17-year-old female, evidence of the depths of the accused’s sexual problems and his future dangerousness are proper matters for consideration

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where error in admitting evidence is of constitutional dimension, the test for harmlessness is whether the evidence may reasonably have had an effect on the decision; if it did not, then the court may conclude that the error was harmless beyond a reasonable doubt
2. constitutional error in admitting improper hearsay to the effect that appellant was “predatory in nature” was harmless beyond a reasonable doubt in light of the fact that: this was appellant’s second offense; he was not a good candidate for rehabilitation; and the erroneous reference to the hearsay paled in comparison to appellant’s record of sexual misconduct and the seriousness of the offense

Trial Stages: Appeals: Law of the Case

1. where court below concluded that military judge erred, and the government conceded that the prosecution committed constitutional error by smuggling hearsay into the sentencing proceeding, the lower court’s conclusion that the military judge erred is the law of the case

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

1. whether constitutional error in admitting evidence was harmless is a question of law which will be reviewed de novo