CAAF decides Pope

United States v. Pope.

We granted review of four issues in this case:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ADMITTING A GREEN DETOXIFICATION DRINK UNDER THE DOCTRINE OF SIMILAR PHYSICAL EVIDENCE.
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO GIVE A LIMITING INSTRUCTION THAT AN EXHIBIT WAS BEING ENTERED INTO EVIDENCE FOR ILLUSTRATIVE PURPOSES ONLY.
WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ALLOW TRIAL COUNSEL TO ELICIT TESTIMONY ON APPELLANT’S RIGHT TO REMAIN SILENT AND TO ALLOW TRIAL COUNSEL TO COMMENT ON THIS DURING HIS FINDINGS ARGUMENT.
WHETHER THE CONTESTED FINDINGS AND SENTENCE IN THE PRESENT CASE SHOULD BE SET ASIDE UNDER THE CUMULATIVE ERROR DOCTRINE.

We agree with Appellant that it was an abuse of discretion to admit the “green detoxification
drink” as demonstrative evidence.  We further hold that it was error — but not prejudicial plain error — to fail to give a limiting instruction.  Given the overwhelming evidence of Appellant’s guilt, however, we are convinced that these errors had no substantial impact on the verdict, and thus did not materially prejudice Appellant’s substantial rights.

The case is worth reading for its discussion of demonstrative evidence and necessary instructions accompanying the use of demonstrative evidence.

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