U.S. v. Cunningham, 83 M.J. 367

Military Justice Personnel: Military Judge: Generally

1. military judges are presumed to know the law and follow it absent clear evidence to the contrary
2. a military judge understands that emotions cannot enter the final determination of a sentence

Trial Stages: Sentence and Punishment: Unsworn Statements

1. under the plain text of RCM 1001A(e) (now RCM 1001(c)(5)(A)), unsworn victim impact statements may be “oral, written, or both;” because in this case the unsworn statement contained elements that were neither “oral” nor “written,” namely, music and photographs, the admission of the victim impact statement was error

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when an appellate court finds error in the admission of sentencing evidence (or sentencing matters), the test for prejudice is whether the error substantially influenced the adjudged sentence
2. the government bears the burden of demonstrating that the admission of erroneous evidence was harmless
3. an appellate court considers four factors when deciding whether an error substantially influenced an appellant’s sentence: (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; and this analysis is conducted de novo
4. it is highly relevant when analyzing the effect of error on the sentence that the case was tried before a military judge, who is presumed to know the law
5. although matters are material if they have some logical connection with the facts of the case or the legal issues presented, an error is more likely to have prejudiced an appellant if the information conveyed as a result of the error was not already obvious from what was presented at trial
6. the quality of the evidence may be assessed by its tendency, if any, to influence the sentencing authority
7. military judges are presumed to know the law and follow it absent clear evidence to the contrary
8. in this case, the error in allowing a victim impact statement in sentencing that included music and photographs was not prejudicial where (1) the government’s sentencing case was strong and weighed heavily in its favor; (2) the defense’s sentencing case only weighed slightly in favor of appellant; (3) the materiality of the evidence was slight where the matters presented were cumulative and provide no additional information than what was presented during sentencing testimony; and (4) the quality of the evidence weighed against appellant where there was nothing in the record to support that the military judge was substantially influenced by the emotional aspects of victim impact statement as it was presented

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

1. interpreting RCM 1001A (now RCM 1001(c) – crime victim’s right to be reasonably heard) is a question of law that an appellate court reviews de novo
2. an appellate court reviews a military judge’s decision to accept a victim impact statement offered pursuant to RCM 1001A (now 1001(c)) for an abuse of discretion
3. when an appellate court finds error in the admission of sentencing evidence (or sentencing matters), the test for prejudice is whether the error substantially influenced the adjudged sentence
4. the government bears the burden of demonstrating that the admission of erroneous evidence was harmless
5. an appellate court considers four factors when deciding whether an error substantially influenced an appellant’s sentence: (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; and this analysis is conducted de novo
6. it is highly relevant when analyzing the effect of error on the sentence that the case was tried before a military judge, who is presumed to know the law
7. although matters are material if they have some logical connection with the facts of the case or the legal issues presented, an error is more likely to have prejudiced an appellant if the information conveyed as a result of the error was not already obvious from what was presented at trial
8. the quality of the evidence may be assessed by its tendency, if any, to influence the sentencing authority
9. military judges are presumed to know the law and follow it absent clear evidence to the contrary
10. whether an appellant has waived an issue is a legal question that this Court reviews de novo

Trial Stages: Appeals: Waiver

1. whether an appellant has waived an issue is a legal question that this Court reviews de novo
2. where trial defense counsel affirmatively declined to object at the conclusion of sentencing arguments, that response constituted an express waiver, obviating the need to address any issue of improper sentencing argument