In Mullins, a forensic child interviewer for a civilian prosecutor’s office testifed at a child molestation court-martial.
After she testified that the alleged victims’ characteristics were “consistent . . . with a child who had been sexually abused or . . . a child who may have been sexually abused,” the military judge sua sponte instructed the members that “no one who testifies in this courtroom can know if someone else is telling the truth or lying,” and that it’s up to the members to determine a witness’s credibility.
On redirect, the witness testified about the frequency of children lying about sexual abuse, saying that it was less than “1 out of 100 or 1 out of 200.” The military judge once again intervened. He asked the witness:
[D]o you have any forensic, that is, scientifically accurate way of proving whether the child is telling the truth or not? In other words . . . the only way that you typically could know that is if the child later comes forth and says “Yes, I made it up,” or . . . unless that [defendant] ultimately confesses, you would ultimately never know who was telling the truth and who wasn’t, is that correct?
The witness agreed that was correct. Neither party made an objection to the witness’s testimony.
CAAF held that the witness’s “1 out of 100 or 1 out of 200” testimony was error under United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007). CAAF also held that the error was plain and obvious.
CAAF held that the error didn’t prejudice the defense due to the military judge’s remedial measures during the witness’s testimony.
CAAF also denied relief on post-trial delay grounds. It found that even assuming unreasoanable delay, the defense hadn’t sufficiently demonstrated prejudice. The court indicated that demonstrating that unreasonable appellate delay interfered with an appellant’s ability to obtain state unemployment payments could be prejudice for appellate delay purposes, but that the record was insufficient to establish such prejudice in this case. CAAF concluded “that the record does not demonstrate that it was Appellant’s leave status that kept him from receiving the benefits and that he would not have been denied on some other grounds.” The court explained, “The record in this case does not contain . . . authoritative evidence that a person in Appellant’s circumstances would have been eligible for unemployment benefits and received them once his appeal was final.” The court concluded “that, under the totality of the circumstances, the post-trial delay was harmless beyond a reasonable doubt.”
Is it just me, or is that final sentence inconsistent with previous portions of the opinion? The court had previously said that post-trial delay’s interference with receiving unemployment insurance could be the kind of prejudice that would lead to relief. The court then basically reasoned that the defense hadn’t carried its burden to demonstrate such prejudice. I understand that the absence of established prejudice could lead the court to conclude that there was no due process violation. But that seems different than saying that the delay was harmless beyond a reasonable doubt. In the body of the opinion, the court appears to be saying that the appellant might have received state unemployment benefits faster but for the appellate delay, but the defense didn’t sufficiently prove it. To say the post-trial delay was harmless beyond a reasonable doubt, wouldn’t CAAF have to conclude that the appellant definitely wouldn’t have received such benefits? If so, I don’t understand how CAAF reached that conclusion.