U.S. v. Norman, 74 M.J. 144

Military Justice Personnel: Prosecution Function: Trial Counsel

1. it is better practice for a trial counsel to make the government’s theory of service discrediting conduct apparent during closing argument

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge abused his discretion in admitting under MRE 701 the testimony of a Marine MP who responded to appellant’s 911 call and testified that in his opinion, any Marine parent who endangers the life of a child by culpable negligence would bring discredit upon the Marine Corps; the MP’s lay opinion testimony essentially restated the terminal element; he offered no reasoning or particular facts as to his understanding of the concept of service discrediting conduct or how he understood this concept as applied to appellant’s actions; it was not clear why the testimony of a Marine MP, without more, would be helpful regarding a question of parenting practice, and whether such practice was service discrediting; although the MP’s testimony regarding his perceptions of the Marine Corps may have established a rational basis for his opinion, the testimony did not establish sufficient details to aid the factfinder in evaluating the service discrediting element; the witness met the first requirement in MRE 701 – he had a rational basis for his perceptions, but failed to meet the second requirement – his testimony was not helpful to the determination of a fact in issue for the factfinder

Military Justice Personnel: Military Judge: Instructions

1. an unconstitutional presumptive conclusion arises when the military judge instructs members that they must conclude that evidence of the charged conduct also satisfies the terminal element; such an instruction is unconstitutional because it relieves the government of its burden of proof, subverts the presumption of innocence accorded to accused persons, and also invades the truth-finding task assigned solely to juries in criminal cases

Core Criminal Law Subjects: Crimes: Article 134 -- Child Endangerment (para 68a, MCM) Pre-2019 offenses

1. the elements of child endangerment are (1) that the accused had a duty for the care of a certain child, (2) that the child was under the age of 16 years, (3) that the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence, and (4) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces
2. in this case concerning a contested child endangerment offense, where the military judge properly instructed the members with the standard instruction in the Military Judges’ Benchbook verbatim, advising them that in order to convict appellant, they must find that under the circumstances the conduct of the accused was of a nature to bring discredit upon the armed forces and where the members could permissibly consider evidence of the charged conduct when evaluating the terminal element, excluding the Marine MP’s testimony regarding his opinion of service discrediting conduct, without more, did not necessitate reversing appellant’s conviction for lack of independent evidence of the terminal element; there was no unconstitutional presumptive conclusion because the military judge properly instructed the members of the court as to the elements of the offense, and did not require them to find proof of the terminal element simply because the government provided proof of the underlying conduct
3. the extent of a child’s injuries may not, in every instance, have any bearing on the conduct of the accused in a child endangerment case; an accused’s culpably negligent conduct may be found service discrediting even where there is no harm to the child; the converse also holds true: an accused’s conduct may not be found service discrediting simply because a child has sustained a grievous injury if the accused’s conduct is not prejudicial to good order and discipline or service discrediting
4. in this case, concerning a contested child endangerment charge, the evidence at trial was legally sufficient to demonstrate that appellant’s conduct was of a nature to bring discredit upon the armed forces where appellant’s ten-month-old son sustained second- and third-degree burns on about 35% of his body after appellant left him unattended in a bathtub with running hot water; a rational trier of fact could have determined, extrapolating from the expert’s testimony, that appellant left his son unattended in a tub of running hot water for a period of time that was longer than 30 to 45 seconds and less than the ten minutes required for an adult male to receive comparable burns; a rational trier of fact also could have determined that appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds, disregarding his son’s cries when the hot water made contact with the skin; furthermore, in light of the expert’s testimony, a rational trier of fact could have concluded that the evidence proved that appellant’s actions were more than bad parenting, but amounted to culpable and criminal negligence, which was of a nature to discredit the armed forces; moreover, a rational trier of fact could have further found this conduct service discrediting because appellant was a Marine Corps sergeant; finally, a rational trier of act could reason that the public would expect appellant, an NCO who had been selected and promoted to the rank of sergeant, to exhibit competence and responsibility toward some in his care; consequently, appellant’s culpably negligent behavior would have a tendency to bring the service into disrepute or tend to lower it in public esteem

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces
2. it is better practice for a trial counsel to make the government’s theory of service discrediting conduct apparent during closing argument

Core Criminal Law Subjects: Evidence: Generally

1. a factfinder may permissibly conclude that the same piece of evidence proves more than one element of a charged crime, so long as this conclusion is reached independently with respect to each element

Core Criminal Law Subjects: Evidence: Opinion Testimony

1. MRE 701 governs the admissibility of opinion testimony by a lay witness; under MRE 701 if the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences that are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (c) not based in scientific, technical, or other specialized knowledge within the scope of Rule 702
2. MRE 701 establishes a two-part test for admissibility of lay opinion: (1) the opinion must be rationally based on the witness’s perception; and (2) the opinion must be helpful to the determination of a fact in issue; it is generally held that opinion testimony is not helpful where it does no more than instruct the factfinder as to what result it should reach
3. in this case, the military judge abused his discretion in admitting under MRE 701 the testimony of a Marine MP who responded to appellant’s 911 call and testified that in his opinion, any Marine parent who endangers the life of a child by culpable negligence would bring discredit upon the Marine Corps; the MP’s lay opinion testimony essentially restated the terminal element; he offered no reasoning or particular facts as to his understanding of the concept of service discrediting conduct or how he understood this concept as applied to appellant’s actions; it was not clear why the testimony of a Marine MP, without more, would be helpful regarding a question of parenting practice, and whether such practice was service discrediting; although the MP’s testimony regarding his perceptions of the Marine Corps may have established a rational basis for his opinion, the testimony did not establish sufficient details to aid the factfinder in evaluating the service discrediting element; the witness met the first requirement in MRE 701 – he had a rational basis for his perceptions, but failed to meet the second requirement – his testimony was not helpful to the determination of a fact in issue for the factfinder
4. under MRE 704, a witness may offer an opinion on an ultimate issue

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

1. an unconstitutional presumptive conclusion arises when the military judge instructs members that they must conclude that evidence of the charged conduct also satisfies the terminal element; such an instruction is unconstitutional because it relieves the government of its burden of proof, subverts the presumption of innocence accorded to accused persons, and also invades the truth-finding task assigned solely to juries in criminal cases

Trial Stages: Merits: Argument

1. it is better practice for a trial counsel to make the government’s theory of service discrediting conduct apparent during closing argument

Trial Stages: Merits: Instructions › Generally

1. an unconstitutional presumptive conclusion arises when the military judge instructs members that they must conclude that evidence of the charged conduct also satisfies the terminal element; such an instruction is unconstitutional because it relieves the government of its burden of proof, subverts the presumption of innocence accorded to accused persons, and also invades the truth-finding task assigned solely to juries in criminal cases

Trial Stages: Merits: Findings

1. a factfinder may permissibly conclude that the same piece of evidence proves more than one element of a charged crime, so long as this conclusion is reached independently with respect to each element
2. in this case concerning a contested child endangerment offense, where the military judge properly instructed the members with the standard instruction in the Military Judges’ Benchbook verbatim, advising them that in order to convict appellant, they must find that under the circumstances the conduct of the accused was of a nature to bring discredit upon the armed forces and where the members could permissibly consider evidence of the charged conduct when evaluating the terminal element, excluding the Marine MP’s testimony regarding his opinion of service discrediting conduct, without more, did not necessitate reversing appellant’s conviction for lack of independent evidence of the terminal element; there was no unconstitutional presumptive conclusion because the military judge properly instructed the members of the court as to the elements of the offense, and did not require them to find proof of the terminal element simply because the government provided proof of the underlying conduct

Trial Stages: Appeals: Harmless / Prejudicial Error

1. (an appellate court conducts de novo review of whether an error, constitutional or otherwise, was harmless; for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings; an appellate court determines whether prejudice resulted from an erroneous evidentiary ruling by weighing four Kerr (51 MJ 401 (CAAF 1999) factors: (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)
2. in this case, the military judge’s error in admitting the testimony of a Marine MP who testified that in his opinion, any Marine parent who endangers the life of a child by culpable negligence would bring discredit upon the Marine Corps was harmless; in applying the four-factor Kerr (51 MJ 401 (CAAF 1999)) harmless error test, three of the four Kerr factors weighed in the government’s favor: the MP’s testimony was not qualitatively significant by virtue of being conclusory and unhelpful to the trier of fact, it was not material to the government’s overall case, and the government had a strong case notwithstanding this testimony; the MP’s testimony only supported one element of the charged conduct which was established by other evidence at trial

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

1. an appellate court reviews a military judge’s application of MRE 701 for an abuse of discretion
2. an appellate court conducts de novo review of whether an error, constitutional or otherwise, was harmless; for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings; an appellate court determines whether prejudice resulted from an erroneous evidentiary ruling by weighing four factors: (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
3. an appellate court reviews the issue of legal sufficiency de novo
4. in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt
5. the legal sufficiency standard does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, rather it requires that a reviewing court examine only whether any rational trier of fact could have made that determination; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts, and preserves the factfinder’s role as weigher of the evidence; in other words, an appellate court’s decision does not hinge on whether or how the parties’ lists of circumstantial evidence or negating factors stack up against each other; rather, it hinges on whether reasonable factfinders could have drawn inferences one way or the other under a given set of circumstances; an appellate court evaluates whether there is an avenue through which a rational factfinder could find the essential elements of the crime