U.S. v. Pope, 69 M.J. 328

First Principles: Constitutional Matters: Generally

1. it is constitutional error to admit evidence of - or comment on in argument - an accused’s post-apprehension silence as evidence of guilt
2. nontestimonial demeanor evidence does not trigger Fifth Amendment protections

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the decision to permit or deny the use of demonstrative evidence generally has been held to be within the sound discretion of the trial judge; thus, there is no abuse of discretion under MRE 403 when the challenged demonstrative evidence is relevant, highly probative of critical issues, and not unfairly prejudicial
2. when demonstrative evidence is admitted, the military judge is required to properly instruct the members that the evidence is for illustrative purposes only

Military Justice Personnel: Military Judge: Discretion

1. the military judge abused his discretion by admitting a green detoxification drink bottle as demonstrative evidence where (1) there was no evidence that appellant consumed detoxification drinks before learning she had tested positive for cocaine on the urinalysis test underlying the charged offense, resulting in the drinks having minimal to no probative value with respect to whether appellant’s drug usage was knowing and therefore wrongful, (2) the demonstrative evidence was not helpful because the members could have easily comprehended the testimony about green detoxification drinks without the aid of a physical example purchased by the government, (3) the bottle purchased by the government was not an accurate representation of the bottles described by the witness, where the bottle purchased by the government had a label identifying the drink as a detoxification drink and the bottles seen by the witness in appellant’s possession had no labels at all, and (4) the demonstrative evidence failed the MRE 403 balancing test

Military Justice Personnel: Military Judge: Instructions

1. when demonstrative evidence is admitted, the military judge is required to properly instruct the members that the evidence is for illustrative purposes only

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. the offense of wrongful use of cocaine has two elements: (1) that the accused used cocaine; and (2) that the use by the accused was wrongful; cocaine usage is not wrongful if the usage occurs without knowledge of the contraband nature of the substance; drug use may be inferred to be wrongful in the absence of evidence to the contrary

Core Criminal Law Subjects: Evidence: Generally

1. demonstrative evidence - also called illustrative evidence - illustrates or clarifies the testimony of a witness; demonstrative evidence is admitted solely to help witnesses explain their testimony; if the evidence is used to prove a complex, central, or difficult to understand point, then it may have a place in the court-martial; however, demonstrative exhibits are inadmissible where they do not illustrate or make clearer some issue in the case; that is, where they are irrelevant, or where the exhibit’s character is such that its probative value is substantially outweighed by the danger of unfair prejudice
2. the decision to permit or deny the use of demonstrative evidence generally has been held to be within the sound discretion of the trial judge; thus, there is no abuse of discretion under MRE 403 when the challenged demonstrative evidence was relevant, highly probative of critical issues, and not unfairly prejudicial
3. admissible underlying testimony is a necessary predicate for the introduction of otherwise relevant and material demonstrative evidence
4. the military judge abused his discretion by admitting a green detoxification drink bottle as demonstrative evidence where (1) there was no evidence that appellant consumed detoxification drinks before learning she had tested positive for cocaine on the urinalysis test underlying the charged offense, resulting in the drinks having minimal to no probative value with respect to whether appellant’s drug usage was knowing and therefore wrongful, (2) the demonstrative evidence was not helpful because the members could have easily comprehended the testimony about green detoxification drinks without the aid of a physical example purchased by the government, (3) the bottle purchased by the government was not an accurate representation of the bottles described by the witness, where the bottle purchased by the government had a label identifying the drink as a detoxification drink and the bottles seen by the witness in appellant’s possession had no labels at all, and (4) the demonstrative evidence failed the MRE 403 balancing test
5. nontestimonial demeanor evidence does not trigger Fifth Amendment protections
6. (although testimonial comments at trial indicated that when appellant was informed of her positive drug test, she was lackadaisical, acted like she did not care, and did not appear surprised, these comments could be viewed as either nontestimonial demeanor evidence or as implicating appellant’s right to remain silent; it is a closer question whether the comments violated MRE 304(h)(3)(stating that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation)

Core Criminal Law Subjects: Evidence: Balancing

1. relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice or misleading the members

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Admission by silence

1. it is constitutional error to admit evidence of - or comment on in argument - an accused’s post-apprehension silence as evidence of guilt
2. (although testimonial comments at trial indicated that when appellant was informed of her positive drug test, she was lackadaisical, acted like she did not care, and did not appear surprised, these comments could be viewed as either nontestimonial demeanor evidence or as implicating appellant’s right to remain silent; it is a closer question whether the comments violated MRE 304(h)(3)(stating that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation)

Core Criminal Law Subjects: Evidence: Instructions on

1. when demonstrative evidence is admitted, the military judge is required to properly instruct the members that the evidence is for illustrative purposes only

Core Criminal Law Subjects: Evidence: Relevance

1. relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice or misleading the members

Trial Stages: Merits: Argument

1. it is constitutional error to admit evidence of - or comment on in argument - an accused’s post-apprehension silence as evidence of guilt

Trial Stages: Appeals: Cumulative Error

1. under the cumulative-error doctrine, a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding; an appellate court will reverse only if it finds the cumulative errors denied appellant a fair trial

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the CAAF will not reverse a conviction for an error of law unless that error materially prejudiced an accused’s substantial rights; it reviews de novo whether the government has met its burden of establishing that the error did not have a substantial influence on the findings in the context of the entire case
2. the government’s erroneous use of a green detoxification bottle as a demonstrative exhibit had no substantial impact on the findings where only the wrongfulness of the offense of wrongful use of cocaine was contested at trial, where drug use may be inferred to be wrongful in the absence of evidence to the contrary, where the defense did not produce any evidence showing that appellant’s use of cocaine was without knowledge and thus not wrongful, and where the government presented evidence of appellant’s admission that she had “messed up” and circumstantial evidence of her consciousness of guilt, including: her nervous behavior at the testing site, her initial failure to provide a sufficient sample, and her eight-hour delay in reporting to the drug testing center the following day
3. although the military judge erred in failing to give a limiting instruction that the admitted demonstrative evidence was for illustrative purposes only, given the overwhelming evidence of appellant’s guilt and the fact that there was little danger that the members would have confused the demonstrative evidence for actual evidence, the absence of a limiting instruction had no substantial effect on the verdict, did not materially prejudice appellant’s rights, and did not constitute prejudicial plain error
4. although testimonial comments at trial indicated that when appellant was informed of her positive drug test, she was lackadaisical, acted like she did not care, and did not appear surprised, these comments could be viewed as either nontestimonial demeanor evidence or as implicating appellant’s right to remain silent; accordingly, it was not plain, or clear, or obvious that they were comments on appellant’s constitutional right to remain silent; while a closer question, it was also not obvious that the comments violated MRE 304(h)(3)(stating that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation); even if the comments constituted either constitutional or evidentiary error, any such error was not prejudicial under either a constitutional or nonconstitutional standard, where the comments were minor comments in the context of the entire trial and argument, the government presented overwhelming evidence of appellant’s guilt, including the uncontested urinalysis results, her admission to her roommate, and her suspicious behavior at the testing site, and where appellant’s theory of defense was unclear and, therefore, not strong
5. given the overwhelming evidence of appellant’s guilt in this case, neither the error in admitting the demonstrative evidence nor the error in failing to give the members a limiting instruction about the demonstrative evidence had a substantial impact on the verdict, materially prejudiced appellant’s substantial rights, or denied her a fair trial

Trial Stages: Appeals: Preservation of Error / Plain Error

1. failure to object to an instruction given or omitted waives the objection absent plain error
2. the plain error standard is met when: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights
3. although the military judge erred in failing to give a limiting instruction that the admitted demonstrative evidence was for illustrative purposes only, given the overwhelming evidence of appellant’s guilt and the fact that there was little danger that the members would have confused the demonstrative evidence for actual evidence, the absence of a limiting instruction had no substantial effect on the verdict, did not materially prejudice appellant’s rights, and did not constitute prejudicial plain error
4. whether there has been improper reference to an accused’s invocation of her constitutional right to remain silent - in testimony or argument - is a question of law that an appellate court reviews de novo; where there are no objections at trial, the court reviews for plain error
5. although testimonial comments at trial indicated that when appellant was informed of her positive drug test, she was lackadaisical, acted like she did not care, and did not appear surprised, these comments could be viewed as either nontestimonial demeanor evidence or as implicating appellant’s right to remain silent; accordingly, it was not plain, or clear, or obvious that they were comments on appellant’s constitutional right to remain silent; while a closer question, it was also not obvious that the comments violated MRE 304(h)(3)(stating that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation); even if the comments constituted either constitutional or evidentiary error, any such error was not prejudicial under either a constitutional or nonconstitutional standard, where the comments were minor comments in the context of the entire trial and argument, the government presented overwhelming evidence of appellant’s guilt, including the uncontested urinalysis results, her admission to her roommate, and her suspicious behavior at the testing site, and where appellant’s theory of defense was unclear and, therefore, not strong

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

1. the CAAF will not reverse a conviction for an error of law unless that error materially prejudiced an accused’s substantial rights; it reviews de novo whether the government has met its burden of establishing that the error did not have a substantial influence on the findings in the context of the entire case
2. an appellate court affords substantial discretion to a military judge’s evidentiary rulings; however, where an objection invokes the MRE 403 balancing test but the military judge fails to conduct the test on the record, less deference is due
3. whether a jury was properly instructed is a question of law reviewed by an appellate court de novo
4. whether there has been improper reference to an accused’s invocation of her constitutional right to remain silent - in testimony or argument - is a question of law that an appellate court reviews de novo; where there are no objections at trial, the court reviews for plain error
5. the cumulative effect of all plain errors and preserved errors is reviewed de novo
6. under the cumulative-error doctrine, a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding; an appellate court will reverse only if it finds the cumulative errors denied appellant a fair trial

Trial Stages: Appeals: Waiver

1. failure to object to an instruction given or omitted waives the objection absent plain error