U.S. v. Harrow, 65 M.J. 190

Military Justice Personnel: Military Judge: General Powers

1. the military judge is permitted in a borderline guilty plea case to give weight to the defense evaluation of the evidence

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge erred when he determined that a failure to remember facts contained in a prior statement cannot be inconsistent with in-court testimony that differs from those facts; an inconsistency for purposes of MRE 613 may be found not only in diametrically opposed answers, but also in inability to recall, or equivocation; a military judge has considerable discretion to determine if the trial testimony is inconsistent with a prior statement; but here the military judge appears not to have understood that an inability to recall or a non-responsive answer may present an inconsistency for purposes of MRE 613; consequently, his evidentiary ruling, based on an incorrect understanding of the law, was an abuse of discretion
2. the military judge did not abuse his discretion in rejecting a defense attempt, under the guise of impeachment by inconsistent testimony, to bring in new evidence that related to a point that the witness had not testified to at trial; the witness was not asked about this point during his testimony, there was no inconsistency, and the defense had not established a foundation for later impeachment

Military Justice Personnel: Court Members: Generally

1. court members are presumed to follow the military judge’s instructions

Core Criminal Law Subjects: Evidence: Character

1. profile evidence is evidence that presents a characteristic profile or trait of an offender, and then places the accused’s personal characteristic or trait within that profile as proof of guilt; generally, use of any characteristic profile as evidence of guilt or innocence in criminal trials is improper; such evidence is improper because it treads too closely to character evidence offered to show that an accused acted in conformity with that character and committed the act in question, evidence prohibited under MRE 404(b)
2. in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was inadmissible profile evidence that focused on characteristics of the abuser, as opposed to characteristics of the child
3. in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry about the symptoms and progression of shaken baby syndrome and her medical conclusion that the victim’s primary diagnosis was probably most consistent with an inflicted injury, was not inadmissible profile evidence; the evidence regarding the progressions and symptoms of shaken baby syndrome focused on the characteristics of the child, not the abuser; and the evidence was not profile evidence simply because it tended to incriminate the accused

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was inadmissible profile evidence that focused on characteristics of the abuser, as opposed to characteristics of the child
2. in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry about the symptoms and progression of shaken baby syndrome and her medical conclusion that the victim’s primary diagnosis was probably most consistent with an inflicted injury, was not inadmissible profile evidence; the evidence regarding the progressions and symptoms of shaken baby syndrome focused on the characteristics of the child, not the abuser; and the evidence was not profile evidence simply because it tended to incriminate the accused

Core Criminal Law Subjects: Evidence: Impeachment

1. the process of impeachment by prior inconsistent statement is a tool to attack the credibility and/or recollection of a witness; by showing self-contradiction, the witness can be discredited as a person capable of error; MRE 613(b) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same; if the inconsistency is admitted, extrinsic evidence is generally not admissible; if the inconsistency is not admitted, or the witness equivocates, extrinsic evidence may be admitted, but only for impeachment

Core Criminal Law Subjects: Evidence: Other Acts

1. the correct test for the admissibility of uncharged misconduct under MRE 404(b) is: first, does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; second, what fact of consequence is made more or less probable by the existence of this evidence; and last, is the probative value substantially outweighed by the danger of unfair prejudice

Core Criminal Law Subjects: Evidence: Prior Inconsistent Statements

1. the process of impeachment by prior inconsistent statement is a tool to attack the credibility and/or recollection of a witness; by showing self-contradiction, the witness can be discredited as a person capable of error; MRE 613(b) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same; if the inconsistency is admitted, extrinsic evidence is generally not admissible; if the inconsistency is not admitted, or the witness equivocates, extrinsic evidence may be admitted, but only for impeachment
2. in this case, the military judge erred when he determined that a failure to remember facts contained in a prior statement cannot be inconsistent with in-court testimony that differs from those facts; an inconsistency for purposes of MRE 613 may be found not only in diametrically opposed answers, but also in inability to recall, or equivocation; a military judge has considerable discretion to determine if the trial testimony is inconsistent with a prior statement; but here the military judge appears not to have understood that an inability to recall or a non-responsive answer may present an inconsistency for purposes of MRE 613; consequently, his evidentiary ruling, based on an incorrect understanding of the law, was an abuse of discretion
3. the military judge did not abuse his discretion in rejecting a defense attempt, under the guise of impeachment by inconsistent testimony, to bring in new evidence that related to a point that the witness had not testified to at trial; the witness was not asked about this point during his testimony, there was no inconsistency, and the defense had not established a foundation for later impeachment

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. the correct test for the admissibility of uncharged misconduct under MRE 404(b) is: first, does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; second, what fact of consequence is made more or less probable by the existence of this evidence; and last, is the probative value substantially outweighed by the danger of unfair prejudice

Core Criminal Law Subjects: Witnesses: Experts

1. in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was inadmissible profile evidence that focused on characteristics of the abuser, as opposed to characteristics of the child
2. in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry about the symptoms and progression of shaken baby syndrome and her medical conclusion that the victim’s primary diagnosis was probably most consistent with an inflicted injury, was not inadmissible profile evidence; the evidence regarding the progressions and symptoms of shaken baby syndrome focused on the characteristics of the child, not the abuser; and the evidence was not profile evidence simply because it tended to incriminate the accused

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. court members are presumed to follow the military judge’s instructions

Trial Stages: Merits: Guilty Pleas

1. the military judge is permitted in a borderline guilty plea case to give weight to the defense evaluation of the evidence
2. a guilty plea is provident if the facts elicited make out each element of the charged offense
3. appellant’s guilty plea to larceny stemming from a fraudulent insurance claim was provident, where the providence inquiry established that appellant fraudulently made a claim to her insurance carrier so that the carrier would pay for damage done to another airman’s car; appellant was not driving the car covered by her insurance carrier when she collided with the other airman’s vehicle; in fact, the accident occurred before appellant had the insurance upon which she made the claim; appellant did not tell the insurance company either of these facts and intended that it pay the claim; as a result of appellant’s misrepresentations, the insurance carrier paid the other airman for damage appellant did to his car in the accident; a person commits an obtaining type larceny if a person wrongfully obtains the delivery of another’s goods to a person or place designated by the accused; appellant’s suggestion that the military judge’s failure to elicit how she knew it was her representation that deceived the insurance company or why her misrepresentation was an important factor in the insurance company’s decision to pay, or when the insurance money was paid to the airman, did not create any basis for questioning the sufficiency of the plea; in addition, appellant’s motive for committing this offense -- that she knew she was supposed to pay the airman for damage she did to his car – did not set up a matter inconsistent with her plea; her motive did not place the facts of this case within the framework of a debt that is not the proper subject of a larceny

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the CCA erred when, after finding a plea to one offense improvident, it reassessed the sentence to include a reduction to E-1 when such reduction was not adjudged at trial

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in applying nonconstitutional harmless error analysis, an appellate court conducts a de novo review to determine whether the error had a substantial influence on the members’ verdict in the context of the entire case; four factors are considered: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; when a fact was already obvious from testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless
2. in a murder case based on the shaken baby syndrome, the military judge’s error in preventing the defense from impeaching the testimony of the baby’s father with extrinsic evidence of prior inconsistent statements regarding whether the baby was crying after the accused left the house, was harmless, where the government’s case against the accused was convincing, where the defense’s case was exceptionally weak, where the materiality of the excluded extrinsic evidence of prior inconsistent statements was for impeachment only, where the defense effectively impeached the father with respect to the prior inconsistent statements by intrinsic evidence, where the military judge gave an instruction regarding inconsistent statements, reiterating the point that the father’s credibility was at issue, where the combination of cross-examination and argument by the defense impeached the father’s credibility and ability to recall, and where the addition of the extrinsic evidence would have been cumulative, would not have changed the arguments proffered by the defense to the members, and would not have had a substantial influence on the members’ verdict; under the facts of this case, it cannot be said that a thorough impeachment of the father’s credibility and recollection was not completed even absent the extrinsic evidence
3. in a murder case based on the shaken baby syndrome, any error stemming from the admission of uncharged misconduct evidence under MRE 404(b) in the form of testimony that appellant had previously thumped the baby hard enough to make the baby scream, that appellant flicked the baby on the body to punish her if she reached for something, and that appellant called the baby stupid and ugly, pulled at the baby by jerking her arm, and grabbed her by the cheeks and pinched them hard when she disobeyed, did not substantially prejudice appellant in view of the weight of the remaining evidence and the weakness of the defense case
4. in a murder case based on the shaken baby syndrome, any error in the admission of profile evidence in the form of testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was harmless, where the case focused on which parent was responsible for the injury, and the profile evidence applied equally to each of them and placed them both squarely within the profiled category
5. although the CCA abused its discretion in reassessing a sentence to include a reduction to E-1 that was not adjudged at trial, where appellant was already an E-1, it was an increase in punishment only in the most technical of senses, since the reduction was void ab initio and a nullity; this abuse of discretion was a harmless error without any practical import or any prejudice; no logic suggests that the CCA would have decreased some other portion of the sentence reassessment if it understood that another portion of the sentence, the reduction in rank, was not available to it

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

1. a decision to admit or exclude evidence is reviewed for an abuse of discretion
2. in applying nonconstitutional harmless error analysis, an appellate court conducts a de novo review to determine whether the error had a substantial influence on the members’ verdict in the context of the entire case
3. the correct test for the admissibility of uncharged misconduct under MRE 404(b) is: first, does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; second, what fact of consequence is made more or less probable by the existence of this evidence; and last, is the probative value substantially outweighed by the danger of unfair prejudice
4. an appellate court rejects a guilty plea only where the record shows a substantial basis in law and fact for questioning a plea
5. an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion
6. CAAF reviews a sentence reassessment by a CCA for obvious miscarriages of justice or abuses of discretion

Miscellaneous Matters: Speedy Trial: Post-Trial

1. an overall post-trial delay of 1,467 days between the trial and completion of review at the CCA was facially unreasonable; because the post-trial delay was facially unreasonable, the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), must be examined: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; however, a separate analysis of each factor need not be conducted if an appellate court can assume error and proceed directly to the conclusion that any error was harmless beyond a reasonable doubt; in this case, any denial of appellant’s right to speedy post-trial review and appeal was harmless beyond a reasonable doubt in view of the totality of the circumstances and entire record, notwithstanding appellant’s claim that due to the delay, her lead appellate counsel was unable to argue her case