2010 (September Term)

United States v. Eslinger, 70 M.J. 193 (RCM 1001(b)(5)(D), which prohibits the prosecution from presenting opinion evidence regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit, does not apply to defense mitigation evidence, and specifically does not preclude defense evidence that a witness would willingly serve with the accused again; retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense; 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; in addition, if the defense is allowed to admit such evidence, the prosecution is free to rebut it; where a party opens the door, principles of fairness warrant the opportunity for the opposing party to respond, provided the response is fair and is predicated on a proper testimonial foundation; as such, if an accused opens the door by bringing witnesses before the court who testify that they want him or her back in the unit, the prosecution is permitted to prove that that is not a consensus view of the command). 

(in this case, where the defense counsel opened the door in sentencing to rebuttal through testimony from its witnesses indicating that they would gladly serve with appellant again, the government was free to rebut with proper evidence that this was not the consensus of the command). 

(when the government’s evidence in rebuttal to defense retention evidence is testimony of the accused’s commander, it may well raise the specter of command influence; however, evidence that the defense witnesses’ views are not a consensus view of the command simply means that retaining the accused is not the view of every member of the command; it does not necessarily mean that the government may parade the commanding officer and the rest of the accused’s chain of command to have them give a command view on retention; that would depend on just how wide the defense opened the door; to be clear, a commander may testify, 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). 

(where the government calls a number of senior command representatives in sentencing to rebut defense retention evidence, the trial counsel should assess which and how many are necessary). 

(rebuttal evidence of defense retention evidence is governed by RCM 1001(d), the rule permitting the prosecution to rebut matters in sentencing presented by the defense; this rule does not contain the same restrictions as RCM 1001(b)(5), the rule governing government evidence with respect to the accused’s rehabilitative potential; RCM 1001(b)(5) does not specifically apply to rebuttal evidence).


United States v. Saferite, 59 MJ 270 (the legal function of rebuttal evidence is to explain, repel, counteract or disprove the evidence introduced by the opposing party; the scope of rebuttal is defined by evidence introduced by the other party; rebuttal evidence, like all other evidence, may be excluded pursuant to MRE 403 if its probative value is substantially outweighed by the danger of unfair prejudice).

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