U.S. v. Othuru - U.S. Court of Appeals for the Armed Forces

United States v. Othuru, No. 06-0768/NAthe heart of the Government’s case. He notes that the trialcounsel highlighted the statements referring to them “[f]irstand foremost” during closing arguments. Othuru also notes thatthe only persons who could rebut the statements were unavailableto testify.The Government disputes that the statements were the focalpoint of the prosecution’s case and points out that Othurupresented a stipulation of Michelle’s expected testimony thatdirectly contradicted her testimonial statement. The Governmentalso argues that the statements were cumulative of othertestimony and evidence which established the fraudulent andinvalid nature of Othuru’s alleged marriage to Michelle.Finally, the Government argues that the evidence of guilt wasoverwhelming even in the absence of the contested statements.To determine whether the constitutional error was harmlessbeyond a reasonable doubt we consider the whole record. VanArsdall, 475 U.S. at 681. Reviewing this record we apply thebalancing test established by the Supreme Court:The correct inquiry is whether, assuming that thedamaging potential of the cross-examination were fullyrealized, a reviewing court might nonetheless say thatthe error was harmless beyond a reasonable doubt.Whether such an error is harmless in a particular casedepends upon a host of factors, all readily accessibleto reviewing courts. These factors include theimportance of the witness’ testimony in theprosecution’s case, whether the testimony wascumulative, the presence or absence of evidencecorroborating or contradicting the testimony of thewitness on material points, the extent of cross-8