CORE CRIMINAL LAW SUBJECTS: Witnesses: Scope of Permissible Testimony

2010 (September Term)

United States v. Eslinger, 70 M.J. 193 (evidence that goes toward the accused’s rehabilitative potential is permissible at sentencing; under RCM 1001(b)(5)(A), trial counsel may present, by testimony or oral deposition in accordance with RCM 702(g)(1), evidence in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation; however, a prosecution witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit). 

(in sentencing, a witness, be he for the prosecution or the defense, should not be allowed to express an opinion whether an accused should be punitively discharged; appropriateness of punishment is an issue to be decided by the members and cannot be usurped by a witness).  

(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). 

(MRE 701(a) requires that lay witness opinions or inferences be limited to those that are rationally based on the perception of the witness; in similar fashion, MRE 602 provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter).

(lay opinions must be derived from direct observation and judgment). 


United States v. James, 61 M.J. 132 (a judge may limit the defenseís cross-examination of a prosecution witness regarding the terms of a plea agreement entered into by the witness, so long as adequate inquiry into possible bias of that witness has been allowed through other lines of questioning).
(this Court has recognized that the exposure of a witnessís motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; it does not follow that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counselís inquiry into the potential bias of a prosecution witness; on the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witnessís safety, or interrogation that is repetitive or only marginally relevant).
(a military judge did not impermissibly infringe upon an accusedís Sixth Amendment right to confrontation by precluding the defense from questioning a witness regarding a specific term of the witnessís pretrial agreement where the judge allowed inquiry into the possible bias and motive to lie of the witness through other questions about his pretrial agreement - specifically that (1) he had a pretrial agreement in his own court-martial; (2) as part of that pretrial agreement he pleaded guilty and entered into a stipulation of facts; (3) he had immunity for his testimony in the accusedís court-martial; (4) his pretrial agreement required him to cooperate with the Government against his best friend; and (5) although he had been sentenced, clemency was still pending in his case, and as part of that process, he would be able to tell the convening authority that he had cooperated and testified against the accused; the limitations placed on cross-examination by the military judge were within his discretion and did not affect the accusedís core constitutional right to cross-examination; once the defense had been allowed to expose the witnessís motivation in testifying, it was of peripheral concern to the Sixth Amendment how much opportunity the defense got to hammer that point home to the factfinders). 
(a military judge has wide discretion to limit repetitive cross-examination or to prohibit cross-examination that may cause confusion). 



United States v. Robbins, 52 MJ 455 (a non-expert witness may not offer conclusions as to the guilt or innocence of an accused).

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