U.S. v. Simpson, 56 M.J. 462

Core Criminal Law Subjects: Evidence: Impeachment

1. to ensure that the answers given may only be used for impeachment purposes, the defense must request a specific instruction under Mil.R.Evid. 105; the failure to request such an instruction constitutes a waiver absent plain error

Core Criminal Law Subjects: Evidence: Other Acts

1. similar offenses occurring earlier in time may be used as “other crimes, wrongs, or acts” for the limited purpose of demonstrating appellant’s tendency to take advantage sexually of women who were intoxicated or under the influence of alcohol

Core Criminal Law Subjects: Motions, Generally: Pretrial › Severance

1. the military justice system encourages the joinder of all known offenses at one trial and permits a motion for severance of offenses only to prevent manifest injustice
2. military judge’s decision on a motion to sever is reviewed for an abuse of discretion
3. an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal
4. to determine whether a military judge has failed to prevent a manifest injustice and denied an appellant a fair trial by denying a motion to sever, a three-prong test is applied: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge provided a proper limiting instruction; and (3) whether the findings reflect an impermissible crossover
5. the military judge did not abuse his discretion in denying appellant’s motion for a severance where: (1) offenses occurring earlier in time were admissible for the limited purpose of demonstrating appellant’s tendency to take advantage sexually of women who were intoxicated or under the influence of alcohol; (2) the members were given proper instructions, including a limiting instruction; and, (3) in light of the military judge’s instructions and the evidence of record, the findings did not reflect an impermissible crossover

Trial Stages: Pretrial: Charges and Specifications

1. the military justice system encourages the joinder of all known offenses at one trial and permits a motion for severance of offenses only to prevent manifest injustice

Trial Stages: Merits: Instructions › Generally

1. failure to object to an instruction prior to commencement of deliberations waives the objection in the absence of plain error
2. while an instruction that incorporates evidence not admitted at trial may constitute error, in the absence of an objection, and given trial defense counsel’s use of that evidence in his closing argument, there was no plain error

Trial Stages: Merits: Instructions › Lesser-included offenses

1. independent evidence permitted, if not required, the military judge to give an instruction on the lesser-included offense of attempted rape where the charged greater offense required the jury to find a disputed factual element which was not required for conviction of the lesser-included offense

Trial Stages: Appeals: Preservation of Error / Plain Error

1. the burden is on appellant to establish plain error

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

1. the propriety of the instructions given by a military judge is reviewed de novo
2. an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal

Trial Stages: Appeals: Waiver

1. failure to object to an instruction prior to commencement of deliberations waives the objection in the absence of plain error
2. to ensure that the answers given may only be used for impeachment purposes, the defense must request a specific instruction under Mil.R.Evid. 105; the failure to request such an instruction constitutes a waiver absent plain error