It’s been said that in sports, a tie is like kissing your sister. When I was an appellate counsel, I felt the same way about harmless error; the court agrees with your argument, it just doesn’t count for anything. Which brings us to the strange case of United States v. Othuru, a harmless error case in which the appellant might very well have actually kissed his sister.

Stanley Othuru, a Nigerian, entered into a fraudulent marriage with Michelle Othuru, Stanley’s biological sister, and collected BAH at the married rate. Michelle and her mother made sworn statements during the course of the investigation admitting to the fraudulent marriage. Neither woman testified. At a trial held before the Supreme Court decided Crawford v. Washington, the military judge admitted both sworn statements in violation of Othuru’s Sixth Amendment right to confrontation.

NMCCA held the error to be harmless beyond a reasonable doubt, and CAAF agreed. Citing other matters introduced by the government such as a demonstrably fake birth certificate for Michelle and the testimony of a records custodian from a Nigerian hospital, CAAF held that admission of the testimonial hearsay was harmless beyond a reasonable doubt.

Comments are closed.