U.S. v. Eslinger, 70 M.J. 193

Military Justice Personnel: Prosecution Function: Trial Counsel

1. where the government calls a number of senior command representatives in sentencing to rebut defense retention evidence, the trial counsel should assess which and how many are necessary

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a commander may testify in rebuttal to defense retention evidence that the accused’s retention is not a consensus view of the command, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions

Core Criminal Law Subjects: Evidence: Generally

1. the Military Rules of Evidence are applicable to sentencing and provide procedural safeguards to ensure the reliability of evidence admitted during sentencing; thus, a lay witness must always have a proper foundation to offer an opinion

Core Criminal Law Subjects: Evidence: Instructions on

1. retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense in sentencing; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; concerns raised with respect to this distinction can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again
2. a commander may testify in rebuttal to defense retention evidence that the accused’s retention is not a consensus view of the command, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions

Core Criminal Law Subjects: Evidence: Opinion Testimony

1. the Military Rules of Evidence are applicable to sentencing and provide procedural safeguards to ensure the reliability of evidence admitted during sentencing; thus, a lay witness must always have a proper foundation to offer an opinion
2. MRE 701(a) requires that lay witness opinions or inferences be limited to those that are rationally based on the perception of the witness; in similar fashion, MRE 602 provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
3. lay opinions must be derived from direct observation and judgment

Core Criminal Law Subjects: Evidence: Rebuttal

1. RCM 1001(b)(5)(D), which prohibits the prosecution from presenting opinion evidence regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit, does not apply to defense mitigation evidence, and specifically does not preclude defense evidence that a witness would willingly serve with the accused again; retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; concerns raised with respect to this distinction can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again; in addition, if the defense is allowed to admit such evidence, the prosecution is free to rebut it; where a party opens the door, principles of fairness warrant the opportunity for the opposing party to respond, provided the response is fair and is predicated on a proper testimonial foundation; as such, if an accused opens the door by bringing witnesses before the court who testify that they want him or her back in the unit, the prosecution is permitted to prove that that is not a consensus view of the command
2. in this case, where the defense counsel opened the door in sentencing to rebuttal through testimony from its witnesses indicating that they would gladly serve with appellant again, the government was free to rebut with proper evidence that this was not the consensus of the command
3. when the government’s evidence in rebuttal to defense retention evidence is testimony of the accused’s commander, it may well raise the specter of command influence; however, evidence that the defense witnesses’ views are not a consensus view of the command simply means that retaining the accused is not the view of every member of the command; it does not necessarily mean that the government may parade the commanding officer and the rest of the accused’s chain of command to have them give a command view on retention; that would depend on just how wide the defense opened the door; to be clear, a commander may testify, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions
4. where the government calls a number of senior command representatives in sentencing to rebut defense retention evidence, the trial counsel should assess which and how many are necessary
5. rebuttal evidence of defense retention evidence is governed by RCM 1001(d), the rule permitting the prosecution to rebut matters in sentencing presented by the defense; this rule does not contain the same restrictions as RCM 1001(b)(5), the rule governing government evidence with respect to the accused’s rehabilitative potential; RCM 1001(b)(5) does not specifically apply to rebuttal evidence

Core Criminal Law Subjects: Witnesses: Scope of Permissible Testimony

1. evidence that goes toward the accused’s rehabilitative potential is permissible at sentencing; under RCM 1001(b)(5)(A), trial counsel may present, by testimony or oral deposition in accordance with RCM 702(g)(1), evidence in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation; however, a prosecution 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. in sentencing, a witness, be he for the prosecution or the defense, should not be allowed to express an opinion whether an accused should be punitively discharged; appropriateness of punishment is an issue to be decided by the members and cannot be usurped by a witness
3. RCM 1001(b)(5)(D), which prohibits the prosecution from presenting opinion evidence regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit, does not apply to defense mitigation evidence, and specifically does not preclude defense evidence that a witness would willingly serve with the accused again; retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; concerns raised with respect to this distinction can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again; in addition, if the defense is allowed to admit such evidence, the prosecution is free to rebut it; where a party opens the door, principles of fairness warrant the opportunity for the opposing party to respond, provided the response is fair and is predicated on a proper testimonial foundation; as such, if an accused opens the door by bringing witnesses before the court who testify that they want him or her back in the unit, the prosecution is permitted to prove that that is not a consensus view of the command
4. in this case, where the defense counsel opened the door in sentencing to rebuttal through testimony from its witnesses indicating that they would gladly serve with appellant again, the government was free to rebut with proper evidence that this was not the consensus of the command
5. when the government’s evidence in rebuttal to defense retention evidence is testimony of the accused’s commander, it may well raise the specter of command influence; however, evidence that the defense witnesses’ views are not a consensus view of the command simply means that retaining the accused is not the view of every member of the command; it does not necessarily mean that the government may parade the commanding officer and the rest of the accused’s chain of command to have them give a command view on retention; that would depend on just how wide the defense opened the door; to be clear, a commander may testify, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions
6. MRE 701(a) requires that lay witness opinions or inferences be limited to those that are rationally based on the perception of the witness; in similar fashion, MRE 602 provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
7. lay opinions must be derived from direct observation and judgment

Trial Stages: Sentence and Punishment: Evidence

1. evidence that goes toward the accused’s rehabilitative potential is permissible at sentencing; under RCM 1001(b)(5)(A), trial counsel may present, by testimony or oral deposition in accordance with RCM 702(g)(1), evidence in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation; however, a prosecution 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. in sentencing, a witness, be he for the prosecution or the defense, should not be allowed to express an opinion whether an accused should be punitively discharged; appropriateness of punishment is an issue to be decided by the members and cannot be usurped by a witness
3. RCM 1001(b)(5)(D), which prohibits the prosecution from presenting opinion evidence regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit, does not apply to defense mitigation evidence, and specifically does not preclude defense evidence that a witness would willingly serve with the accused again; retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; concerns raised with respect to this distinction can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again; in addition, if the defense is allowed to admit such evidence, the prosecution is free to rebut it; where a party opens the door, principles of fairness warrant the opportunity for the opposing party to respond, provided the response is fair and is predicated on a proper testimonial foundation; as such, if an accused opens the door by bringing witnesses before the court who testify that they want him or her back in the unit, the prosecution is permitted to prove that that is not a consensus view of the command
4. in this case, where the defense counsel opened the door in sentencing to rebuttal through testimony from its witnesses indicating that they would gladly serve with appellant again, the government was free to rebut with proper evidence that this was not the consensus of the command
5. when the government’s evidence in rebuttal to defense retention evidence is testimony of the accused’s commander, it may well raise the specter of command influence; however, evidence that the defense witnesses’ views are not a consensus view of the command simply means that retaining the accused is not the view of every member of the command; it does not necessarily mean that the government may parade the commanding officer and the rest of the accused’s chain of command to have them give a command view on retention; that would depend on just how wide the defense opened the door; to be clear, a commander may testify, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions
6. where the government calls a number of senior command representatives in sentencing to rebut defense retention evidence, the trial counsel should assess which and how many are necessary
7. the Military Rules of Evidence are applicable to sentencing and provide procedural safeguards to ensure the reliability of evidence admitted during sentencing; thus, a lay witness must always have a proper foundation to offer an opinion
8. rebuttal evidence of defense retention evidence is governed by RCM 1001(d), the rule permitting the prosecution to rebut matters in sentencing presented by the defense; this rule does not contain the same restrictions as RCM 1001(b)(5), the rule governing government evidence with respect to the accused’s rehabilitative potential; RCM 1001(b)(5) does not specifically apply to rebuttal evidence
9. any infirmity with the testimony in sentencing of appellant’s battalion command sergeant major that appellant should not be retained in the armed forces, which allegedly was not supported by an adequate foundation showing his personal knowledge of appellant, was cured by the military judge’s instruction to disregard the testimony
10. any additional claimed infirmity based on lack of personal knowledge regarding the testimony in sentencing of appellant’s group command sergeant major that appellant should not be retained in the armed forces was affirmatively waived and was not subject to plain error review, where defense counsel only objected that the testimony was cumulative and did not object that the testimony lacked a proper foundation
11. testimony in sentencing from one of appellant’s two team sergeants that appellant should not be retained in the armed forces was supported by a substantial personal foundation where the witness was appellant’s team sergeant for two years, trained with appellant, and deployed with him to Iraq
12. the military judge did not commit plain error by admitting the testimony of appellant’s battalion executive officer who testified in sentencing that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; absent objection to the witness’s testimony, it was not unreasonable for the military judge to infer that the executive officer of a Special Forces battalion would have direct and personal knowledge of appellant, a senior enlisted member in the command
13. the military judge did not commit plain error by admitting the testimony in sentencing of appellant’s group commander who testified that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; although the witness based his knowledge of appellant on his reputation in the command and he did not state that he had direct personal knowledge of appellant, the witness’s testimony was based on his standing as a Special Forces Group commander; in the context of plain error review and in the context of the tightly knit and relatively small units that comprise the Army Special Forces community, absent a record indicating otherwise, the military judge did not abuse his discretion in admitting the Group commander’s testimony

Trial Stages: Sentence and Punishment: Instructions

1. retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense in sentencing; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; concerns raised with respect to this distinction can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again
2. a commander may testify in rebuttal to defense retention evidence that the accused’s retention is not a consensus view of the command, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions

Trial Stages: Appeals: Harmless / Prejudicial Error

1. under the plain error test, after finding plain or obvious error, an appellate court tests for prejudice
2. to test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial for prejudice, an appellate court determines if the error substantially influenced the adjudged sentence
3. any error in admitting the rebuttal sentencing testimony of witnesses from appellant’s chain of command who testified that appellant should not be retained in the armed forces was harmless, where although appellant’s combat service offered significant mitigation, his possession of child pornography was extensive, he did not make the case that his conduct was in some manner the result of his combat experience, he faced a DD and confinement for 30 years, but received a BCD and confinement for 3 years, he had an extensive record of prior misconduct, the military judge gave a standard instruction to guide the members on whether to award a punitive discharge, and if so, what kind, and appellant was sentenced by a panel of six experienced members; the possibility that appellant would have received less confinement or would have avoided a punitive discharge, absent the rebuttal testimony, was remote; the rebuttal testimony did not substantially influence the members’ judgment on the sentence

Trial Stages: Appeals: Preservation of Error / Plain Error

1. failure to object to the admission of evidence at trial forfeits appellate review of the issue absent plain error
2. under the plain error test, after finding plain or obvious error, an appellate court tests for prejudice
3. to test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial for prejudice, an appellate court determines if the error substantially influenced the adjudged sentence
4. the military judge did not commit plain error by admitting the testimony of appellant’s battalion executive officer who testified in sentencing that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; absent objection to the witness’s testimony, it was not unreasonable for the military judge to infer that the executive officer of a Special Forces battalion would have direct and personal knowledge of appellant, a senior enlisted member in the command
5. the military judge did not commit plain error by admitting the testimony in sentencing of appellant’s group commander who testified that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; although the witness based his knowledge of appellant on his reputation in the command and he did not state that he had direct personal knowledge of appellant, the witness’s testimony was based on his standing as a Special Forces Group commander; in the context of plain error review and in the context of the tightly knit and relatively small units that comprise the Army Special Forces community, absent a record indicating otherwise, the military judge did not abuse his discretion in admitting the Group commander’s testimony

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

1. a military judge’s decisions to admit or exclude evidence are reviewed for an abuse of discretion
2. under the plain error test, after finding plain or obvious error, an appellate court tests for prejudice
3. to test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial for prejudice, an appellate court determines if the error substantially influenced the adjudged sentence

Trial Stages: Appeals: Waiver

1. failure to object to the admission of evidence at trial forfeits appellate review of the issue absent plain error
2. any additional claimed infirmity based on lack of personal knowledge regarding the testimony in sentencing of appellant’s group command sergeant major that appellant should not be retained in the armed forces was affirmatively waived and was not subject to plain error review, where defense counsel only objected that the testimony was cumulative and did not object that the testimony lacked a proper foundation