U.S. v. Mullins, 69 M.J. 113

Military Justice Personnel: Court Members: Generally

1. absent evidence to the contrary, court members are presumed to comply with the military judge’s instructions

Core Criminal Law Subjects: Evidence: Credibility

1. in a trial involving the sexual assault of a child, an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused
2. it was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false; such an inference derived from expert testimony invades the province of the members to determine the credibility of witnesses; an expert inference that there was a 1 in 200 chance the victim is lying undermines the duty of the panel members to determine guilt beyond a reasonable doubt

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. in a trial involving the sexual assault of a child, an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused
2. it was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false; such an inference derived from expert testimony invades the province of the members to determine the credibility of witnesses; an expert inference that there was a 1 in 200 chance the victim is lying undermines the duty of the panel members to determine guilt beyond a reasonable doubt

Core Criminal Law Subjects: Evidence: Opinion Testimony

1. in a trial involving the sexual assault of a child, an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. in a trial involving the sexual assault of a child, an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused
2. it was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false; such an inference derived from expert testimony invades the province of the members to determine the credibility of witnesses; an expert inference that there was a 1 in 200 chance the victim is lying undermines the duty of the panel members to determine guilt beyond a reasonable doubt

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where an appellant has not preserved an objection to evidence by making a timely objection, that error will be forfeited in the absence of plain error
2. the plain error standard is met when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused
3. on direct review, an appellate court applies the clear law at the time of appeal in determining whether the error was plain and obvious, not the time of trial
4. the error in admitting expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false was plain and obvious; this case was pending on appeal when the CAAF held that expert testimony about the statistical frequency of children lying about sexual abuse was inadmissible; in addition, related case law at the time of trial supported the conclusion that the error in this case was plain and obvious, where the CAAF had cautioned against expert statistical testimony that placed an accused within a definitive profile suggesting guilt; and finally, the error in this case was apparent to the military judge, who immediately issued a corrective instruction on the role of the members when the expert initially stated that the children’s statements were consistent with those of children who had been abused
5. an error materially prejudices an appellant when there is undue influence on a jury’s role in determining the ultimate facts in the case; with respect to erroneous testimony, an appellate court looks at the error in context to determine if the witness’s opinions amounted to prejudicial error; context includes such factors as the military judge’s instructions and the strength of the government’s case
6. the error in admitting expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false did not materially prejudice appellant’s substantial rights where the military judge gave corrective instructions at the conclusion of the expert’s direct examination, as well as before deliberations, ensuring that the panel members would know their role and not accept the percentage testimony as a proxy for credibility, where the military judge asked the expert a clarifying question, the answer to which indicated that the expert did not have a scientifically accurate way of proving whether a child was telling the truth or not, thus minimizing the impact of the expert’s testimony, and where there was corroborating evidence upon which the court members could rely

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

1. an appellate court’s standard of review for determining whether there is plain error is de novo
2. an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal; when considering appellate delay, a court must balance four factors: (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; no single factor is required for finding a due process violation, and the absence of a given factor will not prevent such a finding; where an appellant meets his burden in demonstrating unreasonable appellate delay, the burden shifts to the government to show that the due process violation was harmless beyond a reasonable doubt

Miscellaneous Matters: Speedy Trial: Post-Trial

1. an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal; when considering appellate delay, a court must balance four factors: (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; no single factor is required for finding a due process violation, and the absence of a given factor will not prevent such a finding; where an appellant meets his burden in demonstrating unreasonable appellate delay, the burden shifts to the government to show that the due process violation was harmless beyond a reasonable doubt
2. even assuming a due process violation occurred in this case because of post-trial delay, it was harmless beyond a reasonable doubt where the record contained no evidence of prejudice warranting relief; although appellant contends that the delay kept him from receiving unemployment benefits because he lacked a DD-214, the record did not contain any authoritative evidence that a person in appellant’s circumstances would have been eligible for unemployment benefits and received them once his appeal was final