Argument Preview: CAAF returns to troublesome lay opinion, in United States v. Lopez, No. 16-0487/AR
CAAF will hear oral argument in the Army case of United States v. Lopez, No. 16-0487/AR (CAAFlog case page), on Tuesday, January 10, 2017, after the argument in Davis. The court specified a single issue for review that questions whether it was error for certain witnesses to testify about their opinion of the appellant’s guilt:
Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.
A general court-martial composed of officer members convicted Sergeant (E-5) Lopez, contrary to his pleas of not guilty, of rape of his wife and indecent liberties with a child for exposing his wife’s minor son to pornographic material, both in violation of Article 120 (2006). Lopez was sentenced to confinement for five years, total forfeitures, reduction to E-1, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence.
The case is something of a sequel to last term’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page) – one of our honorable mentions for the Top Ten Military Justice Stories of 2016 – in which a deeply-divided CAAF narrowly concluded that the defense counsel invited the erroneous admission of human lie detector testimony. In Lopez, however, invited error is unlikely (the defense objected to the questionable testimony of CL).
Yesterday CAAF granted review of an issue involving two lay opinions. Notably, the issue was specified by the court:
No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING THE TESTIMONY OF APPELLANT’S WIFE, MRS. CL, WHO TESTIFIED THAT APPELLANT’S APOLOGY TO HIS STEPSON MEANT THAT APPELLANT WAS “LOOSELY ADMITTING GUILT” TO CRIMINAL CONDUCT, AND BY ALSO ADMITTING THE TESTIMONY OF MS. NM, WHO TESTIFIED THAT APPELLANT “HAD PROBABLY RAPED” HIS WIFE BECAUSE MRS. CL HAD RECENTLY RESEARCHED “SPOUSAL RAPE” ON THE INTERNET.
Briefs will be filed under Rule 25.
I can’t find an opinion on the Army CCA’s website and so assume that the CCA summarily affirmed.