CORE CRIMINAL LAW SUBJECTS: Evidence: Instructions on

2013 (September Term)

United States v. Knapp, 73 M.J. 33 (if a witness offers human lie detector testimony, the military judge must issue prompt cautionary instructions to ensure that the members do not make improper use of such testimony). 

2010 (September Term)

United States v. Lusk, 70 M.J. 278 (the military judge should give a limiting instruction concerning the appropriate use of inadmissible evidence relied upon for the basis of the expert opinion; importantly, such instructions can ensure that the testimony is not transformed from evidence introduced for the limited purpose of showing what the expert witness relied upon into substantive evidence introduced for the purpose of establishing a truth of the matter, particularly in view of the potential that the latter case could raise constitutional issues under the Confrontation Clause of the Sixth Amendment; limiting instructions are particularly important when evidence that is inadmissible, or admissible for only a limited purpose, involves a discrete fact or set of facts).

(in a prosecution for wrongful use of cocaine, once it was determined that a laboratory’s confirmatory drug test report contained inadmissible hearsay, the military judge erred in failing to give a limiting instruction concerning the appropriate use of that inadmissible evidence after an expert witness testified concerning the reliability of the initial, admissible laboratory test report and relied on the confirmatory test report in formulating his opinion). 

United States v. Eslinger, 70 M.J. 193 (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). 

(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). 

United States v. Pope, 69 M.J. 328 (when demonstrative evidence is admitted, the military judge is required to properly instruct the members that the evidence is for illustrative purposes only).

2003

United States v. Kasper, 58 MJ 314 (if a witness offers human lie detector testimony, the military judge must issue prompt cautionary instructions to ensure that the members do not make improper use of such testimony).

(regardless of whether there was a defense objection to the human lie detector evidence presented during the prosecution’s direct examination of the agent, the military judge was responsible for making sure such testimony was not admitted, and that the members were provided with appropriate cautionary instructions; the importance of prompt action by the military judge in the present case is underscored by the central role of the human lie detector testimony).

(even if CAAF were to ignore the prosecution’s affirmative use of human lie detector testimony and view the subsequent defense as opening the door to rebuttal, the military judge should have recognized that the repeated introduction of opinion testimony about the truthfulness of witnesses on the ultimate issue in the case required him to provide the members with detailed instructions; the brief comments by the military judge explaining to the members why he found a particular question to be inappropriate did not constitute an adequate substitute for proper guidance; the comments by the military judge told the members why they would not be provided with certain information, but it failed to guide them with specificity as to how they should and should not consider the human lie detector evidence that had been placed before them; under the circumstances of this case, the failure to provide such guidance constituted prejudicial plain error).

(although as a general matter instructions on limited use are provided upon request under MRE 105, the rule does not preclude a military judge from offering such instructions on his or her own motion, and failure to do so in an appropriate case will constitute plain error).

United States v. Diaz, 59 MJ 79 (there are limits to what a panel can be expected to disregard; the human mind of a member is not a blackboard where the judge, by a curative instruction, can irrevocably erase powerful inadmissible evidence).

(a curative instruction is the preferred remedy to purge the prejudice resulting from impermissible expert testimony).

1999

United States v. Anderson, 51 MJ 145 (military judge did not abuse his discretion by instructing members that certain prior statements could be considered for the truth of the matter therein where the defense highlighted the testimony of the victims by attempting to impeach them with their own prior statements).

United States v. Harris, 51 MJ 191 (the military judge corrected error from improper evidence of threats by accused; such evidence was never admitted as proper “other acts” evidence, and the military judge instructed the members to disregard the comments about threats as hearsay which denied accused the opportunity to confront the threats).


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