U.S. v. Ellis, 68 M.J. 341

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when: (1) the findings of fact upon which he predicates his ruling are not supported by the evidence of record; (2) if incorrect legal principles are used; or (3) if his application of the correct legal principles to the facts is clearly unreasonable
2. under the circumstances of this case, the military judge did not abuse his discretion by allowing the government’s expert to testify in the presentencing hearing as to the accused’s potential for rehabilitation, specifically his risk of recidivism

Core Criminal Law Subjects: Evidence: Balancing

1. the probative value of an expert’s testimony on an accused’s risk of recidivism, as relevant to the accused’s rehabilitation potential, was not substantially outweighed by the danger of unfair prejudice under MRE 403 in this judge-alone case, despite the accused’s claim that the expert’s use of a Static 99 appraisal resulted in an over reliance on the mere number of charged offenses due to the manner in which he was charged, where the accused did not object to the expert’s use of the appraisal on such a basis, the expert was questioned thoroughly about the methodology of the appraisal by both the trial defense counsel and the military judge, and the military judge was aware of the issue regarding the potential government influence resulting from the nature of the charging decision; the challenge that the accused had as to methodology went to weight rather than admissibility

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. MRE 702-705 and 403 operate to establish a simple four-part test for admissibility of expert testimony: (1) was the witness qualified to testify as an expert? (2) was the testimony within the limits of the expert’s expertise? (3) was the expert opinion based on a sufficient factual basis to make it relevant?, and (4) does the danger of unfair prejudice created by the testimony outweigh its probative value?
2. there can be no hard and fast rule as to what constitutes sufficient information and knowledge about the accused necessary for an expert’s opinion as to an accused’s rehabilitation potential; the sufficiency of the facts and data are analyzed on a case-by-case basis
3. an expert had a sufficient factual basis to provide relevant expert opinion on an accused’s risk of recidivism, as relevant to the accused’s rehabilitation potential, in a court-martial on offenses including, inter alia, specifications of indecent acts with a child and communicating indecent language to a child, even though the expert did not personally interview the accused or the victims, where the expert used a Static 99 instrument that was specifically designed to do a risk assessment based upon a review of records, and where the expert reviewed the charges and specifications, an extensive stipulation of fact, the forensic analysis of the accused’s computer’s hard drive, a listing of the images identified there, the chat logs, the guilty plea inquiry, and the available rehabilitation options

Trial Stages: Sentence and Punishment: Evidence

1. during the presentencing hearing, an accused’s potential for rehabilitation is a proper subject of testimony by qualified experts
2. RCM 1001(b)(5)(A) allows trial counsel to present opinion evidence in a presentencing hearing as to an accused’s potential for rehabilitation
3. there can be no hard and fast rule as to what constitutes sufficient information and knowledge about the accused necessary for an expert’s opinion as to an accused’s rehabilitation potential; the sufficiency of the facts and data are analyzed on a case-by-case basis

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

1. an appellate court reviews a military judge’s decision to admit or exclude expert testimony over a defense objection for an abuse of discretion
2. when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors