U.S. v. Frost, 79 M.J. 104

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed
2. an appellate court may not find an abuse of discretion if the court’s conclusion is that the military judge was maybe wrong or probably wrong; rather, instead, an appellate court may only conclude that findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake by the trial judge has been committed
3. in this case, the military judge made a clearly erroneous finding of fact when he admitted the initial statement of the alleged victim as a prior consistent statement after he determined that the defense had alleged that the victim’s psychotherapist had exerted an improper influence on the victim during counseling sessions and that this initial statement was made prior to the improper influence; in fact, based on the defense counsel’s opening statement, her cross-examination of the victim’s mother and the victim’s psychotherapist, and her colloquy with the military judge, the defense’s sole theory and line of approach was that the victim’s mother, not the psychotherapist, had a motive to improperly influence the victim by her desire to obtain sole custody of her children (to include the victim), and that she exerted an improper influence on the victim prior to the victim’s initial statement; statements made after an improper influence arose do not rehabilitate a witness’s credibility; because the military judge’s finding was unsupported by the record and outside the range of choices reasonably arising from the law and the applicable facts, the military judge abused his discretion in admitting the victim’s initial statement as a prior consistent statement when the initial statement was made after the mother’s improper influence

Core Criminal Law Subjects: Evidence: Credibility

1. statements made after an improper influence arose do not rehabilitate a witness’s credibility

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. hearsay is generally not admissible in courts-martial; however, a prior consistent statement is not hearsay

Core Criminal Law Subjects: Evidence: Prejudice

1. the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless
2. for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (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. in this case, the government failed to meet its burden that the erroneous admission of the alleged victim’s initial statement as a prior consistent statement was harmless and did not have a substantial influence on the guilty findings where (1) the government’s case was weak, (2) the defense presented a fairly robust case on behalf of appellant, and (3) the materiality and quality of the improperly admitted evidence was likely substantial because it went to the heart of the matter in dispute, the credibility of the alleged victim

Core Criminal Law Subjects: Evidence: Prior Consistent Statements

1. hearsay is generally not admissible in courts-martial; however, a prior consistent statement is not hearsay; hearsay; from the plain language of MRE 801(d)(1)(B), three criteria have been derived for the admission of prior consistent statements: (1) the declarant of the statement must testify and must be subject to cross-examination about the prior statement; (2) the statement must be consistent with the declarant’s testimony; and (3) the statement must be offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying; in addition, there are two additional guiding principles governing the admission of a prior consistent statement: (1) the prior statement, admitted as substantive evidence, must precede any motive to fabricate or improper influence that it is offered to rebut; and (2) where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut
2. in this case, the military judge made a clearly erroneous finding of fact when he admitted the initial statement of the alleged victim as a prior consistent statement after he determined that the defense had alleged that the victim’s psychotherapist had exerted an improper influence on the victim during counseling sessions and that this initial statement was made prior to the improper influence; in fact, based on the defense counsel’s opening statement, her cross-examination of the victim’s mother and the victim’s psychotherapist, and her colloquy with the military judge, the defense’s sole theory and line of approach was that the victim’s mother, not the psychotherapist, had a motive to improperly influence the victim by her desire to obtain sole custody of her children (to include the victim), and that she exerted an improper influence on the victim prior to the victim’s initial statement; statements made after an improper influence arose do not rehabilitate a witness’s credibility; because the military judge’s finding was unsupported by the record and outside the range of choices reasonably arising from the law and the applicable facts, the military judge abused his discretion in admitting the victim’s initial statement as a prior consistent statement when the initial statement was made after the mother’s improper influence

Core Criminal Law Subjects: Evidence: Prior Inconsistent Statements

1. hearsay is generally not admissible in courts-martial; however, a prior consistent statement is not hearsay; hearsay; from the plain language of MRE 801(d)(1)(B), three criteria have been derived for the admission of prior consistent statements: (1) the declarant of the statement must testify and must be subject to cross-examination about the prior statement; (2) the statement must be consistent with the declarant’s testimony; and (3) the statement must be offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying; in addition, there are two additional guiding principles governing the admission of a prior consistent statement: (1) the prior statement, admitted as substantive evidence, must precede any motive to fabricate or improper influence that it is offered to rebut; and (2) where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut
2. in this case, the military judge made a clearly erroneous finding of fact when he admitted the initial statement of the alleged victim as a prior consistent statement after he determined that the defense had alleged that the victim’s psychotherapist had exerted an improper influence on the victim during counseling sessions and that this initial statement was made prior to the improper influence; in fact, based on the defense counsel’s opening statement, her cross-examination of the victim’s mother and the victim’s psychotherapist, and her colloquy with the military judge, the defense’s sole theory and line of approach was that the victim’s mother, not the psychotherapist, had a motive to improperly influence the victim by her desire to obtain sole custody of her children (to include the victim), and that she exerted an improper influence on the victim prior to the victim’s initial statement; statements made after an improper influence arose do not rehabilitate a witness’s credibility; because the military judge’s finding was unsupported by the record and outside the range of choices reasonably arising from the law and the applicable facts, the military judge abused his discretion in admitting the victim’s initial statement as a prior consistent statement when the initial statement was made after the mother’s improper influence

Core Criminal Law Subjects: Witnesses: Generally

1. statements made after an improper influence arose do not rehabilitate a witness’s credibility

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Admission/suppression of evidence

1. the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless
2. for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless
2. for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (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. in this case, the government failed to meet its burden that the erroneous admission of the alleged victim’s initial statement as a prior consistent statement was harmless and did not have a substantial influence on the guilty findings where (1) the government’s case was weak, (2) the defense presented a fairly robust case on behalf of appellant, and (3) the materiality and quality of the improperly admitted evidence was likely substantial because it went to the heart of the matter in dispute, the credibility of the alleged victim

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

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed
2. an appellate court may not find an abuse of discretion if the court’s conclusion is that the military judge was maybe wrong or probably wrong; rather, instead, an appellate court may only conclude that findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake by the trial judge has been committed
3. the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless
4. for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (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