U.S. v. Cano, 61 M.J. 74

Core Criminal Law Subjects: Witnesses: Child Witness

1. there is a good deal of scholarly debate in the area of child suggestibility and its effect on the reliability of the testimony of a child victim; however, scholars agree that the danger of false testimony from a child is greater when the child is subjected to highly suggestive interviewing techniques such as “closed” (yes/no) questions and “multiple interviews with multiple interviewers”

Trial Stages: Pretrial: Discovery

1. where an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt
2. the military judge’s error in failing to release to the defense a clinical psychologist’s medical records compiled during her therapy sessions with the child abuse victim was harmless beyond a reasonable doubt where any inconsistencies revealed in the withheld evidence were cumulative of other evidence available at trial, easily explained based on the victim’s age and maturity, and were not significant in relation to the victim’s overall testimony; in addition, the records did not provide any new ammunition for the defense to attack the victim’s credibility and did not provide evidence of suggestive questioning or coaching

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

1. where an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt
2. as CAAF reviews issues of prejudice from erroneous evidentiary rulings de novo, it can apply the correct “harmless beyond a reasonable doubt” standard in its review