U.S. v. Washington, 80 M.J. 106

Core Criminal Law Subjects: Evidence: Balancing

1. although MRE 403 provides in relevant part that the military judge may exclude relevant evidence if its probative value is substantially outweighed by a danger of confusing the issues, in this case, there was little danger that the SHARP testimony would confuse the members about a legal standard where no one suggested at trial that the members should decide the case according to what was said at the SHARP training, the members agreed in voir dire that they would follow the military judge’s instructions on the law, the military judge properly instructed the members on the law, and counsel for both sides made arguments in accordance with the military judge’s instructions on the law

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

1. although MRE 403 provides in relevant part that the military judge may exclude relevant evidence if its probative value is substantially outweighed by a danger of confusing the issues, in this case, there was little danger that the SHARP testimony would confuse the members about a legal standard where no one suggested at trial that the members should decide the case according to what was said at the SHARP training, the members agreed in voir dire that they would follow the military judge’s instructions on the law, the military judge properly instructed the members on the law, and counsel for both sides made arguments in accordance with the military judge’s instructions on the law

Trial Stages: Appeals: Harmless / Prejudicial Error

1. under Article 59(a), UCMJ, the government has the burden to persuade an appellate court that the erroneous admission of evidence did not materially prejudice the substantial rights of appellant; for 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; when assessing the materiality and quality of the evidence, an appellate court considers the particular factual circumstances of each case to determine how much the erroneously admitted evidence may have affected the court-martial; and in evaluating the materiality and quality of the evidence, the following non-exhaustive list factors may be considered: the extent to which the evidence contributed to the government’s case, the extent to which instructions to the panel may have mitigated the error, the extent to which the government referred to the evidence in argument, and the extent to which the members could weigh the evidence using their own layperson knowledge
2. in this case, even if the military judge abused her discretion by permitting the unit’s SHARP representative to testify that when a person says no, it means to stop and walk away, any error in the admission of this evidence did not materially prejudice the substantial rights of appellant, where the government’s case was strong, the defense case in comparison was much weaker, the evidence contributed little to the government’s case because the SHARP training did not directly concern the defense of mistake of fact as to consent, the military judge correctly instructed the members on the law, the trial counsel did not unduly exploit the questionable evidence during his closing arguments but instead tailored his arguments in accordance with the military judge’s instructions on the law, and the panel could place the evidence in its proper perspective and not give it undue weight where the level of alertness of appellant during the training was in question and where the SHARP representative had difficulty himself in recalling the content of his presentation

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

1. under Article 59(a), UCMJ, the government has the burden to persuade an appellate court that the erroneous admission of evidence did not materially prejudice the substantial rights of appellant; for 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; when assessing the materiality and quality of the evidence, an appellate court considers the particular factual circumstances of each case to determine how much the erroneously admitted evidence may have affected the court-martial; and in evaluating the materiality and quality of the evidence, the following non-exhaustive list factors may be considered: the extent to which the evidence contributed to the government’s case, the extent to which instructions to the panel may have mitigated the error, the extent to which the government referred to the evidence in argument, and the extent to which the members could weigh the evidence using their own layperson knowledge

Miscellaneous Matters: Command Influence: Generally

1. a party alleging actual unlawful command influence must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness; the threshold for this showing requires more than mere allegation or speculation
2. with respect to unlawful command influence, references to departmental or command policies made before members have been condemned; however, while certainly not a best practice, and one fraught with peril, such references do not, without more, constitute unlawful command influence
3. to establish apparent unlawful command influence, appellant must show an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
4. although Article 37, UCMJ, prohibits unlawful command influence, in this case, the evidence of the SHARP training did not violate this prohibition where the SHARP training was not done for the purpose of influencing the trial, no one argued at trial that the SHARP training reflected the law, the military judge properly instructed the members, and the members agreed that they could follow the military judge’s instructions

Miscellaneous Matters: Command Influence: Members

1. with respect to unlawful command influence, references to departmental or command policies made before members have been condemned; however, while certainly not a best practice, and one fraught with peril, such references do not, without more, constitute unlawful command influence
2. although Article 37, UCMJ, prohibits unlawful command influence, in this case, the evidence of the SHARP training did not violate this prohibition where the SHARP training was not done for the purpose of influencing the trial, no one argued at trial that the SHARP training reflected the law, the military judge properly instructed the members, and the members agreed that they could follow the military judge’s instructions