U.S. v. Hill, 62 M.J. 271

Military Justice Personnel: Military Judge: Generally

1. MRE 606(b) does not apply to military judges; an extra-judicial statement by a military judge may be given appropriate consideration on appeal, subject to certain qualifications
2. as a general matter, military judges are presumed to know the rules of evidence and to consider testimony only for permissible purposes; that presumption is strengthened by the prompt action of a trial judge, which expressly cuts off and rejects questionable testimony; just as it is presumed that the members follow the instructions of the military judge, it is also presumed that a military judge adheres to his own evidentiary rulings

Trial Stages: Sentence and Punishment: Evidence

1. during a sentencing proceeding, it is appropriate to consider the rehabilitative potential of an accused; under RCM 1001(b)(5), the prosecution may present opinion testimony during sentencing as to potential of an accused to be restored to a useful and constructive place in society, with certain restrictions; such testimony is limited to whether the accused has rehabilitative potential and to the magnitude or quality of any such potential; the prosecution’s witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit
2. the defense, which has broad latitude to present evidence in extenuation and mitigation under RCM 1001(c), is not subject to the limitations of RCM 1001(b)(5); if the defense, however, elicits evidence that could not be introduced by the prosecution under RCM 1101(b)(5), the door may be opened for the prosecution to present such evidence in rebuttal
3. in this case, when the defense counsel opened the door in sentencing on the accused’s commander’s view that he would not want the accused back in his unit in a particular occupational specialty, the trial judge could properly consider that commander’s testimony, and could give that testimony such weight as the judge deemed appropriate in the sentencing proceeding, including how it might bear on the question of a punitive discharge
4. in this case, where the trial judge expressly stated that the accused’s commander’s remarks on cross-examination about not retaining him in the service were not responsive and inadmissible, and where the post-trial Bridge the Gap comments of the same judge that he was thinking of keeping the accused in the service until his commander said he did not want him back were admissible when read in a certain context, in light of the presumption that a military judge adheres to his own evidentiary rulings, and under the circumstances of this case, the accused has not demonstrated that the trial judge relied upon inadmissible testimony in the course of adjudging the sentence

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

1. as a general matter, an appellate court presumes that a military judge knows the rules of evidence and considers testimony only for permissible purposes; that presumption is strengthened by the prompt action of a trial judge, which expressly cuts off and rejects questionable testimony; just as an appellate court presumes that the members follow the instructions of the military judge, it also presumes that a military judge adheres to his own evidentiary rulings