United States v. Pope
2011 CAAF LEXIS 79
C.A.A.F.2011Background
- Appellant was convicted by a panel of officers in a special court-martial of wrongful use of cocaine in violation of Article 112a, UCMJ, with a bad-conduct discharge, three months’ confinement, $450 per month for three months, and reduction to E-1; findings and sentence were affirmed by the CCA.
- The charged offense arose from Appellant’s positive urinalysis on March 25, 2008 after an initial inadequate sample the day before.
- Before trial, the Government sought to admit a green detoxification drink as demonstrative evidence; defense objected to relevance; the judge admitted the bottle.
- Sweeney, Appellant’s roommate, testified about green drinks and Appellant’s prior possession of similar items; the Government also presented testimony on delays and demeanor associated with the urinalysis.
- The court held the demonstrative evidence was abusive and not prejudicially impactful; it otherwise affirmed the findings and sentence based on overwhelming evidence of guilt, and addressed issues on limiting instruction, right-to-silence references, and cumulative error.
- Concurrence clarified views on demonstrative evidence and the fair-response doctrine, but did not alter the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Demonstrative evidence admission abuse of discretion | Pope argued the bottle was demonstrative, not probative | Pope argued the bottle aided understanding of testimony | Abuse of discretion in admission |
| Limiting instruction on demonstrative evidence | Prosecutor failed to instruct demonstrative evidence is illustrative | Defense argued lack of instruction could mislead | Not prejudicial plain error; impact on verdict minimal |
| Comment on right to remain silent | Trial comments implicated right to silence | Comments were nontestimonial demeanor evidence or not clearly implied | Not plain error; no substantial prejudice given overwhelming evidence |
| Cumulative error doctrine | Multiple errors pourrais cumulatively prejudice | Overwhelming guilt evidence mitigates impact | No reversible cumulative error |
Key Cases Cited
- Heatherly, 21 M.J. 113 (C.M.A. 1985) (demonstrative evidence defined and admissibility standards)
- White, 23 M.J. 84 (C.M.A. 1986) (M.R.E. 403 balancing and prejudice concerns)
- Aldaco, 201 F.3d 979 (7th Cir. 2000) (demonstrative evidence and probative value balancing)
- Finley, 75 F.3d 1225 (7th Cir. 1996) (demonstrative evidence can be powerful; need firm foundations)
- Pope, 69 M.J. 179 (C.A.A.F. 2010) (disposition on demonstrative evidentiary use and limits)