U.S. v. McElhaney, 54 M.J. 120

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. proffered expert testimony must meet certain criteria for admissibility: (1) the expert must be qualified; (2) the subject of the testimony must be within the realm of the expert’s qualification; (3) the expert must have an appropriate basis for the testimony; (4) the testimony must be relevant; (5) the testimony must be reliable; and (6) the testimony must meet the balancing test under Mil. R. Evid. 403

Core Criminal Law Subjects: Evidence: Privileges › Husband-wife privilege

1. the spousal privilege encompassing confidential communications made during the marriage requires three conditions to be met for the privilege to be upheld: (1) a communication; (2) intended to be confidential; (3) between married persons not separated at the time of the communication

Core Criminal Law Subjects: Evidence: Privileges › Husband-wife privilege

1. the spousal privilege encompassing confidential communications made during the marriage may be waived if the holder of the privilege voluntarily discloses or consents to disclosure of any significant portion of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege; and, if that communication is made in the presence of third parties, or revealed to third parties, the communication is not privileged

Core Criminal Law Subjects: Evidence: Privileges › Husband-wife privilege

1. appellant’s disclosures, in context, waived the marital communications privilege where his written references communicated more than the mere fact that a conversation occurred with his wife; those communications showed appellant’s intent to have a third party understand the overall substance of the conversation by relying upon knowledge that appellant and the third party shared; thus, appellant’s disclosures in communications to third parties revealed a significant part of the communication to his wife

Core Criminal Law Subjects: Witnesses: Confrontation

1. the Sixth Amendment protects an accused’s right to confrontation and cross-examination, and Mil. R. Evid. 611(b) establishes the scope of cross-examination at trials by courts-martial limiting cross-examination to “the subject matter of the direct examination and matters affecting the credibility of the witness”; trial judge may also exercise discretion to limit cross-examination based on concerns about harassment, prejudice, confusion of issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant
2. military judge did not abuse his discretion by limiting cross-examination of witness about unrelated rape allegation where: (1) that allegation was irrelevant to the trial; (2) the allegation provided an insufficient basis upon which to attack the victim’s credibility; (3) the allegation had no bearing on the validity of the allegations against appellant; (4) the allegation did not establish a motive for the victim to fabricate the allegations against appellant; and (5) the defense counsel provided no evidence showing the complaint to be false other than the unsurprising denial of the alleged perpetrator
3. military judge did not abuse his discretion by limiting cross-examination of victim about her early childhood in a bar-brothel where: (1) the matter was not relevant to any fact in issue; (2) why she may have moved in with her uncle was not a fact in issue and did not bear upon any matter of consequence; (3) even if victim did move in with uncle to escape the environment of the bar-brothel, this fact did not bear upon victim’s credibility; and (4) defense counsel failed to show connection between the bar-brothel and the victim’s credibility at appellant’s court-martial

Core Criminal Law Subjects: Witnesses: Experts

1. proffered expert testimony must meet certain criteria for admissibility: (1) the expert must be qualified; (2) the subject of the testimony must be within the realm of the expert’s qualification; (3) the expert must have an appropriate basis for the testimony; (4) the testimony must be relevant; (5) the testimony must be reliable; and (6) the testimony must meet the balancing test under Mil. R. Evid. 403

Core Criminal Law Subjects: Witnesses: Production of

1. the parties to a court-martial are given equal opportunity to obtain witnesses and are entitled to production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary
2. military judge’s ruling on a request for a witness is reviewed for abuse of discretion and should be reversed only if, on the whole, denial of the defense witness was improper; judicial denial of a witness request will not be set aside unless there is a definite and firm conviction that the military judge committed a clear error of judgment in the conclusion it reached upon weighing relevant factors
3. factors to be weighed to determine whether personal production of a witness is necessary include: the issues involved in the case and the importance of the requested witness to those issues; whether the witness is desired on the merits or the sentencing portion of the case; whether the witness’s testimony would be merely cumulative; the availability of alternatives to the personal appearance of the witness; and the timeliness of the request for the witness
4. defense requested witness to testify that rape allegation made by victim when she was ten years old was false and to provide opinion on victim’s character for truthfulness; military judge did not abuse discretion in denying that request where the allegation of rape: (1) was irrelevant; (2) would have provided an insufficient basis upon which to attack victim’s credibility; (3) had no bearing on validity of victim’s claims against appellant; (4) did not establish a motive on the part of the victim to fabricate claims against appellant; and (5) fell short of developing a relevant history of false sexual complaints by the victim
5. defense requested production of law enforcement agent who interviewed victim to testify about victim’s poor recall of time frames, coaching by the victim’s mother, prior inconsistent statements by the victim, and the fact that the victim was punished for her relationship with appellant; military judge did not abuse his discretion in denying this request where: (1) the judge was presented with clear evidence that the agent would not testify as the defense had proffered; and (2) the agent had no personal knowledge whether victim was punished for her relationship with appellant
6. defense requested production of witness to testify about victim’s home environment, specifically that at about 6 years old the victim was raised in a bar/brothel and mimicked suggestive or erotic conduct she observed there, thus explaining how she obtained sexual knowledge beyond her years and could fabricate allegations against appellant; military judge did not abuse his discretion in denying this request where: (1) the testimony could not have imparted anything about what the victim actually observed; (2) the testimony could not have revealed anything about what sexual matters the victim understood at that age; (3) the testimony could not reveal what sexual knowledge the victim obtained at that time; and (4) the court members would have been left to speculate about the nexus between what the victim knew and saw at 6 years old and the knowledge she had between 15 and 17 during the criminal investigation and the court-martial

Core Criminal Law Subjects: Motions, Generally: Motions to Dismiss

1. the provisions of the Victims of Child Abuse Act (18 USC 3283) demonstrate a congressional intent to apply its provisions in federal district courts, not courts-martial; the VCCA’s statute of limitations does not provide a procedure that is necessary to the proper functioning of the other components of the Act, and the question of whether the policy behind the extended statute of limitations in the VCCA warrants application in courts-martial is a matter for consideration by Congress
2. court below erred when it applied the extended statute of limitations in the Victims of Child Abuse Act, 18 USC 3283, to appellant’s court-martial; Article 43 provides the applicable statute of limitations

Trial Stages: Sentence and Punishment: Unsworn Statements

1. evidence presented at sentencing may include evidence of rehabilitative potential, but such evidence must be based on a proper foundation; the witness must possess sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority
2. military judge erred by allowing expert to testify about the future dangerousness of appellant as related to pedophilia: (1) the witness was a child psychiatrist, not a forensic psychiatrist; (2) the expert had not examined appellant or reviewed his medical or personnel records; (3) the expert indicated he could not render a diagnosis of pedophilia without examining appellant; (4) testimony that appellant’s behavior was consistent with pedophilia amounted, for all practical purposes, to labeling appellant as a pedophiliac because the expert’s prognosis for rehabilitative potential was premised on that assumption; (5) the witness gave generalized testimony about the rehabilitative potential of pedophiles, but did not indicate the source of his information; and (6) the witness did little to make a specific link with appellant

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

1. military judge’s ruling on the admissibility of evidence is reviewed for an abuse of discretion, and a decision to admit or exclude evidence under Mil. R. Evid. 403 is also reviewed for an abuse of discretion; this is a strict standard, calling for more than a mere difference of opinion; to be reversed, the challenged ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous
2. when counsel has objected to testimony, a military judge’s ruling on admissibility of expert testimony is reviewed for abuse of discretion
3. military judge’s ruling on the admissibility of evidence is reviewed for an abuse of discretion, and a decision to admit or exclude evidence under Mil. R. Evid. 403 is also reviewed for an abuse of discretion; this is a strict standard, calling for more than a mere difference of opinion; to be reversed, the challenged ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous
4. application of a federal statute to the military justice system is a question of law that is subject to de novo review
5. military judge’s ruling on a request for a witness is reviewed for abuse of discretion and should be reversed only if, on the whole, denial of the defense witness was improper; judicial denial of a witness request will not be set aside unless there is a definite and firm conviction that the military judge committed a clear error of judgment in the conclusion it reached upon weighing relevant factors

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. Congress exercises control over discipline in the military through the Uniform Code of Military Justice, and although we frequently look to civilian statutes for guidance, the military and civilian justice systems are separate as a matter of law; amendments to Title 18 of the United States Code, changes to the Federal Rules of Criminal Procedure, and changes to the Federal Rules of Evidence to not directly affect proceedings under the Uniform Code of Military Justice except to the extent that the Code or Manual for Courts-Martial specifically provides for incorporation of such changes
2. Congressional intent to separate military justice from the federal criminal system requires military appellate courts to exercise great caution in overlaying a generally applicable statute specifically onto the military justice system; Congress intended the deliberative process of amending the Manual for Courts-Martial to prevail over uncritical application of statutes outside the UCMJ
3. application of a federal statute to the military justice system is a question of law that is subject to de novo review
4. court below erred when it applied the extended statute of limitations in the Victims of Child Abuse Act, 18 USC 3283, to appellant’s court-martial; Article 43 provides the applicable statute of limitations