U.S. v. Littlewood, 53 M.J. 349

Core Criminal Law Subjects: Evidence: Opinion Testimony

1. lay opinion testimony is admissible at court-martial and is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. See MREs 701, 702, and 704
2. to be admissible, opinion testimony by law witnesses must, inter alia, be helpful within the meaning of MRE 701; such opinion testimony is not helpful where it does no more than instruct the factfinder as to what result it should reach
3. military judge abused his discretion in permitting appellant’s commander to testify as to his lay opinion that certain acts were indecent, prejudicial to good order and discipline, and service discrediting, where: (1) the commander’s opinions as to the propriety of such conduct in the military in general may not be matters outside the ken of the average military judge or member; (2) the testimony was bald assertions, unsupported by reasoning or particular facts showing the manner in which these charged offenses embarrassed the command or undermined its morale; (3) the opinion was phrased in legal terms without explanation as to the lay witness’ understanding of these terms; and (4) the conclusory form of the testimony, unexplained and unequivocal, could foster the appearance of unlawful command influence in the eyes of the public