U.S. v. Pablo, 53 M.J. 356

Trial Stages: Appeals: Harmless / Prejudicial Error

1. erroneous admission of hearsay under the residual hearsay exception (MRE 803(24)) was nonconstitutional error to be tested for harmlessness where appellant had the opportunity to cross-examine the declarant and did so effectively
2. the test for harmless error is whether the error itself had substantial influence on the findings; if so, or if the court is left in grave doubt, the conviction cannot stand
3. the Government has the burden of persuading the court that an error was harmless – that it did not have a substantial influence on the findings
4. the government failed to meet its burden of persuading the court that the erroneous admission of hearsay evidence was harmless, thus leaving the court with grave doubt about whether the erroneously-admitted testimony may have substantially influenced the findings, and requiring that the conviction be reversed where: (1) the in-court testimony of the child-victim/declarant was found to be vague and foggy; (2) the in-court testimony of the child-victim/declarant was contradicted; (3) the court members expressed concern about evidentiary discrepancies; (4) the witness who testified as to the hearsay statement provided a clear, lucid description of the offense; (5) the witness who testified as to the hearsay statement described the child-victim/declarant’s demeanor in a manner suggesting truthfulness; (6) the witness indicated that the child-victim/declarant had repeated her accusations three times; and (7) the findings suggest that the hearsay testimony may have substantially influenced the deliberations

Trial Stages: Appeals: Scope of Review

1. because the Government did not challenge Court of Criminal Appeals holding that residual hearsay was inadmissible, Court of Appeals for the Armed Forces’ review was limited to the lower court’s conclusion that the error was harmless

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

1. the Government has the burden of persuading the court that an error was harmless – that it did not have a substantial influence on the findings