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Rebuttal. RCM 1001(d)

uscourtmartiallawyers95Rebuttal.. Government rebuttal evidence must actually “explain, repel, counteract or disprove the evidence introduced by the opposing party.” United States v. Wirth , 18 M.J. 214, 218 (C.M.A. 1984).

  1. United States v. Hursey, 55 M.J. 34 (C.A.A.F. 2001). The military judge abused his discretion when he admitted the testimony of NCOIC of the base Military Justice Division to testify that the accused was late for his court-martial as rebuttal to defense evidence of the accused’s dependability at work (where NCOIC unable to say whether the accused was at fault or whether his being late was unavoidable). Testimony had little probative value, was potentially misleading, and time wasting.
  2. United States v. Reveles , 41 M.J. 388 (C.A.A.F. 1994). Accused is not entitled to present his sentencing case free from the chilling effect of legitimate government evidence (if DC introduces too much evidence of the accused’s life then military judge might allow government to introduce victim life video).
  3. United States v. Edwards , 39 M.J. 528 (A.F.C.M.R. 1994). Air Force Regulation 111-1 prohibits admission of records of NJP at courts-martial if the record is over five years old as of the date the charges were referred. Accordingly, admission of a five year- old NJP was error, even though it properly rebutted matter submitted by the defense.
  4. United States v. Dudding , 37 M.J. 429 (C.M.A. 1993). A Licensed Clinical Social Worker (LCSW) testified that accused was good candidate for group therapy and recommended eighteen months of group treatment. A government witness, from USDB, testified that accused would be exposed to more treatment groups if sentenced to ten years versus five years. The defense interposed no objection. The court held not plain error.
  5. United States v. Roth , 52 M.J. 187 (C.A.A.F. 1999). The defense sought to call a witness to testify that there was no gang problem in the housing area discussed by the CID agent. The witness had been in the courtroom during the testimony of the CID agent. The judge held that the defense had violated the sequestration rule and refused to let the witness testify. The CAAF held that the military judge abused her discretion. The court noted that the ultimate sanction of excluding a witness should ordinarily be used to punish intentional or willful disobedience of a military judge’s sequestration order.
  6. Horner and Ohrt apply to government rebuttal witnesses. See United States v. Pompey , 32 M.J. 547 (A.F.C.M.R. 1990). The basic foundational requirements from those cases govern rebuttal witnesses who are testifying about rehabilitation potential; RCM 1001(b)(5) does not expressly apply. United States v. Griggs , 61 M.J. 402 (C.A.A.F. 2005); United States v. Eslinger , 70 M.J. 193 (C.A.A.F. 2011).
  7. When to allow rebuttal? United States v. Tilly , 44 M.J. 851 (N-M. Ct. Crim. App. 1996). The military judge began to deliberate on sentence, then granted trial counsel motion to reopen sentencing to allow rebuttal with newly-discovered evidence. The court found that the beginning of the judge’s deliberation was not a bar to reopening the taking of evidence for rebuttal.
  8. United States v. Henson , 58 M.J. 529 (Army Ct. Crim. App. 2003). During the presentencing case, the defense presented good military character evidence which the government rebutted by offering extrinsic evidence of bad acts: evidence of the wrongful taking and pawning of a microwave; evidence of racially insensitive acts by appellant in the barracks; evidence of substandard performance and appearance; evidence of uniform violations; and evidence of an unkempt room. The military judge abused his discretion when, over defense’s objection, he allowed extrinsic evidence to rebut the good character and reputation evidence presented by the defense. The Army Court found, however, that the error did not prejudice a material right of the appellant especially in light of the clemency recommendation made by the military judge and the convening authority’s following that recommendation. The court did, however, reduce the appellant’s period of confinement by one month to “moot any claim of possible prejudice.” Id . at 533.
  9. United States v. Saferite , 59 M.J. 270 (C.A.A.F. 2004). The appellant was charged and convicted of various offenses including larceny, and faced over 230 years confinement. After arraignment but before trial, the appellant escaped from confinement and was tried in absentia . The defense called the appellant’s spouse to talk about him as a husband and father. In rebuttal, the government offered two sworn statements that implied that the appellant’s spouse was complicit in the appellant’s escape, an escape already known to the panel and for which the military judge gave an instruction on sentencing that the appellant was NOT to be sentenced for the escape. The government offered the two statements to show the witness’ bias. The court held that the judge abused his discretion, under MRE 403, in admitting the statements. The court found that the government’s theory of complicity was “tenuous at best” and the government improperly focused its argument on the two statements and the spouse’s alleged complicity in the escape. 10. United States v. Bridges , 66 M.J. 246 (C.A.A.F. 2008). Under Article 59(a) UCMJ an error of law regarding the sentence does not provide a basis for relief unless the error materially prejudiced the substantial rights of the accused.
  • Surrebuttal.. United States v. Provost , 32 M.J. 98 (C.M.A. 1991). After government rebuttal to accused’s first unsworn statement, accused was entitled to make a second unsworn statement. But see United States v. Satterley , 55 M.J. 168 (2001).

United States v. Hursey,

United States v. Saferite