I spent today at the ALI’s annual meeting, so Restatements are on my mind.  And that’s what ACCA’s new Eslinger opinion calls to mind — a Restatement of the law governing the admissibility of retention evidence during the various portions of a court-martial sentencing case.  United States v. Eslinger, __ M.J. ___, No. ARMY 20070335 (A. Ct. Crim. App. May 14, 2010) (en banc). 

Eslinger doesn’t appear to make new law or offer any novel unifying principle.  Rather, it collects the law from classics like Ohrt, Horner, and Griggs and sets it out in one convenient package.  Senior Judge Conn wrote for the court.  Judge Carlton concurred in the result.

While finding clear error in the military judge’s handling of retention evidence during the government’s rebuttal sentencing case, ACCA concluded that the error wasn’t prejudicial and affirmed.

The opinion includes an Appendix setting out a proposed addition to the Military Judges’ Benchbook providing instructions concerning retention testimony.  Id., slip op. at 26.

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