The Judge Advocate General of the Army yesterday certified this issue to CAAF:
WHETHER THE RESTRICTIONS UNDER R.C.M. 1001(B)(5)APPLY TO REBUTTAL EVIDENCE SUBMITTED UNDER R.C.M. 1001(D) AND WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE COMMITED [SIC] PLAIN AND OBVIOUS ERROR WHEN HE PERMITTED INTRODUCTION OF GOVERNMENT REBUTTAL TESTIMONY TO DEFENSE “RETENTION EVIDENCE” WHEN THERE WAS NO DEFENSE OBJECTION.
[BTW, the “[sic]” is CAAF’s, not mine.] United States v. Eslinger, __ M.J. ___, No. 11-5002/AR (C.A.A.F. Oct. 12, 2010). This appears to be a cross-certification; I’m not sure if I’ve seen one of those before.
On 10 September, CAAF had granted the defense’s petition on this issue:
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PERMITTING THE GOVERNMENT TO OFFER EVIDENCE IN THE FORM OF OPINION TESTIMONY FROM SENIOR OFFICER AND NCO WITNESSES WITH NO PERSONAL KNOWLEDGE OF APPELLANT’S DUTY PERFORMANCE TO OPINE THAT HE SHOULD BE SEPARATED FROM THE ARMY AND SPECIAL FORCES.
ACCA’s en banc opinion is available at 69 M.J. 522. ACCA held that the erroneous admission of the opinion testimony was clear and obvious, but it wasn’t prejudicial and hence didn’t satisfy the plain error test.