UNITED STATES, Appellee 

v. 

Richard C. FOSTER, Personnelman First Class 

U.S. Navy, Appellant 

No. 06-0238 

Crim. App. No. 200301262 

United States Court of Appeals for the Armed Forces 

Argued October 25, 2006 

Decided January 30, 2007 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, J., joined. 

STUCKY and RYAN, JJ., did not participate. 

Counsel 

For Appellant: William E. Cassara, Esq. (argued); Captain 

Jeffrey S. Stephens, USMC, and Captain Peter Griesch, USMC (on 

brief). 

For Appellee: Major Kevin C. Harris, USMC (argued); Commander 

Paul LeBlanc, JAGC, USN (on brief); Colonel Ralph F. Miller, 

USMC. 

Military Judge: Nels H. Kelstrom 

This opinion is subject to revision before final publication. 
United States v. Foster, No. 06-0238/NA 

2

Judge ERDMANN delivered the opinion of the court. 

 Personnelman First Class Richard C. Foster entered a plea 

of not guilty to two specifications of committing indecent acts 

with a child on divers occasions and one specification of 

communicating a threat, all in violation of Article 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). At the 

close of the Government’s case, the military judge dismissed one 

of the indecent act specifications on the grounds that the 

evidence was factually insufficient. The panel convicted Foster 

of the remaining two specifications and sentenced him to a 

dishonorable discharge, forfeiture of all pay and allowances, 

reduction to the lowest enlisted grade and confinement for five 

years. The convening authority approved the sentence and the 

United States Navy-Marine Corps Court of Criminal Appeals 

affirmed the findings and the sentence. United States v. 

Foster, No. NMCCA 200301262, 2005 CCA LEXIS 322, 2005 WL 2704961 

(N-M. Ct. Crim. App. Oct. 18, 2005) (unpublished). 

 A military judge’s impartiality is crucial to the conduct 

of a legal and fair court-martial. United States v. 

Quintanilla, 56 M.J. 37, 43 (C.A.A.F. 2001). The military judge 

may participate actively in proceedings to assure that courtmartial members receive the information that they need to 

determine whether the accused is proven guilty, however, the 

military judge must take care not to become an advocate for 
United States v. Foster, No. 06-0238/NA 

3

either party. United States v. Ramos, 42 M.J. 392, 396 

(C.A.A.F. 1995). We granted review of this case to determine 

whether the military judge remained impartial in his conduct of 

this trial.1 While we do not condone some of the actions taken 

by the military judge, in the context of the entire trial, the 

legality, fairness, and impartiality of the court-martial were 

not put in doubt. 

Background

 The allegations leading to Foster’s charges involved 

several instances of inappropriate sexual contact with his sixyear-old stepdaughter and his threats to her if she told her 

mother about the incidents. The Government’s case relied in 

large part on the stepdaughter’s testimony and Foster’s defense 

was that the child’s story was not true. A key component of the 

defense strategy was the testimony of Dr. Mary L. Huffman, a 

developmental research psychologist with expertise in evaluating 

children’s testimony. 

Foster’s claim that the military judge was not impartial 

centers on the military judge’s treatment of Dr. Huffman. 

 

1

 We granted review of the following issue: 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL 

APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF 

APPELLANT WHEN IT RULED THAT THE MILITARY JUDGE DID 

NOT BECOME A PARTISAN ADVOCATE FOR THE GOVERNMENT, AND 

THAT THE MILITARY JUDGE’S TREATMENT OF THE DEFENSE 

EXPERT DID NOT DENY APPELLANT’S RIGHT TO PRESENT A 

DEFENSE. 
United States v. Foster, No. 06-0238/NA 

4

Foster argues that the military judge harbored an inflexible and 

biased attitude toward Dr. Huffman and displayed contempt for 

her credentials and testimony and disdain for her area of 

expertise. He argues that the military judge improperly limited 

Dr. Huffman’s testimony, engaged in hostile and combative 

questioning, and discredited her testimony by inaccurately 

summarizing it in a jury instruction that was not sufficiently 

detailed or accurate. Foster contends that the military judge, 

through his treatment of this expert witness, became a partisan 

advocate for the Government and denied him his right to present 

a defense. The Government responds that the military judge did 

not depart from his neutral role but set appropriate parameters 

on the testimony of the expert, asked questions to uncover 

relevant facts, and tailored the expert witness instructions to 

give accurate and impartial guidance to the members. 

Discussion

There is a strong presumption that a military judge is 

impartial in the conduct of judicial proceedings. Quintanilla, 

56 M.J. at 44. “When a military judge’s impartiality is 

challenged on appeal, the test is whether, taken as a whole in 

the context of [the] trial, [the] court-martial’s legality, 

fairness, and impartiality were put into doubt by the military 

judge’s actions.” Id. at 78 (citation and quotation marks 

omitted); see also United States v. Acosta, 49 M.J. 14, 18 
United States v. Foster, No. 06-0238/NA 

5

(C.A.A.F. 1998). We apply this test from the viewpoint of the 

reasonable person observing the proceedings. Ramos, 42 M.J. at 

396. Failure to object at trial to alleged partisan action on 

the part of a military judge may present an inference that the 

defense believed that the military judge remained impartial. 

See United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000) 

(citing United States v. Hill, 45 M.J. 245, 249 (C.A.A.F. 

1996)). 

 We will address in turn each of the four alleged instances 

of partisanship that Foster has raised: (1) the military 

judge’s improper limitation on Dr. Huffman’s testimony; (2) the 

military judge’s hostile examination of Dr. Huffman in front of 

the court-martial members; (3) the instruction to members which 

failed to identify Dr. Huffman as an expert and inaccurately 

summarized her testimony; and (4) inappropriate comments made by 

the military judge outside the presence of the members that 

demonstrated his bias against Dr. Huffman. 

1. Limitation of Dr. Huffman’s testimony 

The defense’s pretrial proffer of Dr. Huffman’s testimony 

reflects that she was being called to “testify about the effects 

of multiple interviews on a child, leading questions, and 

improper interview techniques. She will testify these factors 

can taint a child’s testimony and make the child actually 

believe something is true that is not.” 
United States v. Foster, No. 06-0238/NA 

6

A key aspect of Dr. Huffman’s work involves the concept of 

source misattribution error where a child over time has 

difficulty discerning whether his or her own memory or another’s 

repeated questioning is the real source of the information. In 

Dr. Huffman’s view, an analysis of the first interview with the 

child is crucial in determining whether source misattribution 

error occurred. The first interview in this case was 

unavailable for review because the audio and videotape equipment 

failed. Due to the absence of this record, Dr. Huffman was 

unable to perform the source misattribution error analysis. As 

the defense was questioning Dr. Huffman about the interview 

procedures that were utilized in this case, the Government 

objected on the grounds that it appeared she was about to opine 

on the victim’s credibility. 

The military judge convened an Article 39(a), UCMJ, 10 

U.S.C. § 839(a) (2000), session outside the presence of the 

court-martial members to discuss the objection and Dr. Huffman’s 

testimony. The military judge instructed Dr. Huffman that she 

could not reveal whether she thought the victim was telling the 

truth. Dr. Huffman was expressly prohibited from stating that 

“no one really could get on the stand and say that [the victim] 

is or isn’t telling the truth.” The rest of Dr. Huffman’s 

examination, as well as the cross-examination, redirect 
United States v. Foster, No. 06-0238/NA 

7

examination and re-cross examination proceeded without further 

objection or limitation. 

Foster, relying on our decision in United States v. Cacy, 

43 M.J. 214 (C.A.A.F. 1995), asserts that this testimonial 

limitation deprived him of a critical component of his defense 

and urges us to see this restriction as evidence of the military 

judge’s bias against Dr. Huffman. In Cacy, we recognized that 

an expert may testify about symptoms that are generally found 

among children who have suffered sexual abuse and whether the 

child-witness has exhibited these symptoms. Id. at 217. An 

expert may also testify about patterns of consistency generally 

found in the stories of victims as compared to patterns in the 

victim’s story. Id. Although Cacy allows this type of expert 

testimony in appropriate circumstances, this court has 

recognized that there is a fine line between admissible 

testimony in this area and testimony about a victim’s 

credibility or its functional equivalent, which is not 

admissible. See id. at 217-18; United States v. Birdsall, 47 

M.J. 404, 410 (C.A.A.F. 1998); United States v. Arruza, 26 M.J. 

234, 237 (C.M.A. 1988); see also United States v. Brooks __ M.J. 

___ (11)(C.A.A.F. 2007). 

In this case, Dr. Huffman had no basis upon which she could 

offer a Cacy-like comparison of typical behavior patterns. 

Repeatedly during her testimony, she made the point that unless 
United States v. Foster, No. 06-0238/NA 

8

a recording of the first interview was available for review, she 

would not have the means to assess whether the testimony of the 

victim was affected by multiple interviews. Since there was no 

record of the initial interview, Dr. Huffman lacked the casespecific information that she needed to make Cacy-type 

comparisons. Indeed, she stated expressly that “I don’t think 

anyone can say that there was [source misattribution error] and 

I don’t think anyone can say that there was not.” Cacy is 

therefore inapplicable to this case. 

 The military judge ruled that while credibility assessments 

are a function of the jury, Dr. Huffman could help the members 

decide what factors they should use to carry out that function. 

What she could not do was reveal her personal assessment of the 

child’s credibility. The limitation on her testimony was 

appropriate and the ruling of the military judge was not 

erroneous. As we have found that the military judge did not err 

in his testimonial limitation, there exists no basis upon which 

a reasonable observer could conclude that the ruling casts doubt 

upon the court-martial’s legality, fairness, and impartiality. 

 2. The military judge’s examination of Dr. Huffman 

 Following the examination of Dr. Huffman by the counsel for 

both parties, a member submitted several questions concerning 

Dr. Huffman’s review of the case and the concept of source 

misattribution error. Based on these questions, the military 
United States v. Foster, No. 06-0238/NA 

9

judge conducted an examination of Dr. Huffman. The relevant 

portion of this exchange is as follows: 

Q: Have you ever interviewed [the victim]? 

A: I have not. 

Q: All right. I’m sure it wasn’t your intent to gloss 

over this, but it was kind of glossed over early on in your 

testimony. I think they were just kind of rushing through 

to get to the crux of your testimony, but I understood you 

to say that in preparation for your testimony here today, 

you reviewed some paperwork but you were primarily 

interested in the number of times the children were 

interviewed, something along those lines. Tell me if you 

will what it is that you reviewed about this case before 

coming in to testify? 

A. What I typically review would be a videotape ---- 

Q. No, what have you reviewed in this case? 

A. In this case. I was not -– there was no documentation 

given to me from the forensic interviewer -– interview that 

was conducted with [the victim] or [the victim’s brother]. 

That information was lost so, therefore, I was sent police 

reports and different things like that, but I -- honestly, 

I did not even look at that because I’m mostly interested 

in the forensic interview and there was no documentation on 

that. So what I asked for was a list of documented 

interviews and who conducted them. So that’s mostly what I 

reviewed. 

Q: All right. So you had a list of the people involved in 

conducting interviews? 

A. Right. 

Q. Okay. But you did not review the police report or 

anything else that had been submitted to you? 

A. That is correct. I did not review those. 

Q. So you, therefore, do not know what was contained 

within the police report? 
United States v. Foster, No. 06-0238/NA 

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A. Right. Because to me, the time delay between when that 

interview was conducted and what was actually contained -– 

what was contained in the report, there’s such a delay that 

even the interviewer could reconstruct how they asked 

questions, what was asked, what was said, but that wasn’t 

of value to me. 

Q. It wasn’t, okay. On cross-examination you did indicate 

that if a child tells the same story over time, 

notwithstanding a number of interviews, intervening 

interviews, that that is not a suggestive interview. None 

of those interviews would be suggestive, in your opinion. 

A. That is correct. But the caveat needs to be said that 

in that first interview, leading -– which we don’t have 

documentation on, leading questions, misleading questions, 

that the child could get clear messages as far as details 

and what needs to be said, and that that could be false 

information that’s then maintained from interview to 

interview. And because I didn’t have that first interview, 

again, I can’t say, “Here are the original things and 

here’s how they were carried through.” 

Q. Sure. Would it be important to you, for example, to 

talk to the person who conducted that first interview and 

determine the types of questions [which] were asked? 

A. No, because they are reconstructing how an interview 

should be asked and what should -– and I believe most 

interviewers would know enough [to know that] you shouldn’t 

ask leading questions, you should ask open-ended questions, 

but ---- 

Q. So you ---- 

A. ---- what actually happened is, we don’t know. 

Q. So, in other words, you wouldn’t believe the person if 

that person told you that, “Gee, I asked non-leading 

questions.” 

A. As a memory expert, years down the road I don’t know 

that they are going to reconstruct correctly because 

they’ve interviewed other people since then, and they don’t 

have documentation from how that interview ---- 
United States v. Foster, No. 06-0238/NA 

11

Q. So you just chose, instead, just to ignore the whole 

thing, not even inquire as to how that interview is 

conducted. 

A. I would look at it, but I would know that there are 

going to be memory errors incorporated because it wasn’t 

conducted -– correctly done. 

Q. And that’s why you didn’t read the police report, 

that’s why you didn’t contact the person or persons who 

conducted these interviews. Because you assumed there 

would be errors in how they would report to you how they 

conducted the interview? 

A. Legally and ethically, I never contact the people that 

conduct the interview. 

Q. So you got a list of names of people who conducted 

interviews with [the victim], you didn’t speak with those 

people; all you have is names? 

A. Out of less –--- 

Q. So you know the number of interviews, and a list of the 

people who conducted the interviews, and that’s it? With 

regard to the fact of the -– this case? 

A. That is correct, and then personal communication with 

defense counsel as far as other facts of the case and what 

was contained in those other things. 

Q. So you don’t know, then, whether there was any source 

misattribution error at all in this case, do you? 

A. I don’t think anyone can say that there was and I don’t 

think anyone can say that there was not. 

Q. Okay. Understand. But you have no basis at all to 

state that that error that you identified is, in fact, an 

issue in this case. 

A. If a forensic interviewer is not careful enough to 

record the testimony ---- 

Q. I understand that, but you don’t know that. You don’t 

know that’s so, in this case, you don’t know if source 

attribution error is, in fact, an issue in this case? 
United States v. Foster, No. 06-0238/NA 

12

A. That we never could know whether it is or isn’t. 

 Defense counsel did not object during the military judge’s 

examination of Dr. Huffman. However, outside the presence of 

the members he argued that the tone of the questioning might 

have led the members to think negatively about Dr. Huffman’s 

preparation for trial or to believe that the military judge did 

not think highly of Dr. Huffman or feel that her opinion was 

valid. Defense counsel described the questioning as harsh and 

combative and broached the possibility of submitting a proposed 

instruction that specifically addressed the exchange. 

Although the military judge denied that his questioning was 

harsh and combative, he referenced a generic instruction that he 

intended to give requiring the members to disregard any of his 

comments or questions that they thought expressed an opinion 

about the credibility of a witness or about any issue in the 

case. The matter of a unique instruction on the nature of the 

questioning was not raised again and the generic instruction was 

given with the final instructions. 

 On appeal, Foster describes the military judge’s 

questioning of Dr. Huffman as “hostile,” “combative” and 

“scathing” and contends that the military judge improperly took 

on the tone and tenor of a prosecutor. The Government argues 

that the military judge was acting to ensure that the members 

had the information they required to assess the nature and value 
United States v. Foster, No. 06-0238/NA 

13

of Dr. Huffman’s testimony. Noting that the defense did not 

object to the questioning at trial, the Government also argues 

that the military judge diminished the potential for bias 

through two curative instructions: one of which addressed the 

proper use of expert testimony and the other which directed the 

members to ignore any statements reflecting any personal opinion 

or bias by the military judge. 

A military judge “can and sometimes must ask questions in 

order to clear up uncertainties in the evidence or to develop 

the facts further.” Ramos, 42 M.J. at 396. Because “jurors are 

ever watchful of the words that fall from him,” however, “a 

military judge must be circumspect in what he says to the 

parties and in how he examines witnesses.” Id. (citation and 

quotation marks omitted). In this regard, the tenor used by the 

military judge in questioning Dr. Huffman generates concern. 

Military judges should take care to elicit information in a 

neutral manner and to avoid the kind of approach reflected in 

this record that so closely resembles the tenor of crossexamination. See United States v. Clower, 23 C.M.A. 15, 18, 48 

C.M.R. 307, 310 (1974). Nevertheless, judging from the 

standpoint of a reasonable observer, we have no difficulty 

concluding that “taken as a whole in the context of this trial,” 

this limited exchange cast no doubt upon the court-martial’s 
United States v. Foster, No. 06-0238/NA 

14

legality, fairness, and impartiality. Ramos, 42 M.J. at 396 

(citation and quotation marks omitted). 

3. The expert witness instruction

Foster argues that the military judge’s expert witness 

instruction failed to identify Dr. Huffman as an “expert” and 

also failed to accurately summarize her testimony. From the 

trial’s outset, the military judge informed both counsel that he 

would not refer to any of the expert witnesses as “experts.” He 

explained that he “[did not] like to use the word ‘expert’” 

because he thought “that puts kind of an imprimatur on the 

weight to be given to their testimony.” There was no objection. 

The military judge later gave instructions to the members 

that described the testimony of the defense’s two experts, Dr. 

Huffman, a developmental research psychologist, and Lieutenant 

Commander Steven A. Talmadge Jr., a forensic psychologist, as 

“educational testimony.” The testimony of the Government’s 

expert witness, Dr. Elizabeth Heidt Kozisek, a clinical 

psychologist, was described as “specialized testimony.” As to 

Dr. Huffman, the instruction, in relevant part, read as follows: 

You have also heard the testimony of Dr. Mary Huffman 

and Lieutenant Commander Steven Talmadge who were 

allowed to testify in this case because their 

knowledge, skill, training, education and experience 

in their respective fields may assist you in 

understanding the evidence or in determining a fact in 

issue; however, you are not required to accept their 

testimony or give it more weight than the testimony of 

any other witness. You should, however, consider 
United States v. Foster, No. 06-0238/NA 

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their qualifications in determining the weight you 

will accord their testimony. 

. . . . 

You will recall that Dr. Huffman did not testify 

about the nature of the pretrial interviews of [the 

victim] and [the victim’s brother] that were conducted 

by various individuals in this case, nor about the 

types of questions that were used in conducting those 

interviews. Dr. Huffman did testify that because the 

videotape recording of a forensic interview of [the 

victim] by Special Agent Dillard had a blank audio 

track she was unable to perform an assessment of the 

types of questions asked during that interview. 

However, she did provide general information that 

suggestibility can cause memory errors, that every 

child is different in this regard with some children 

being more susceptible to suggestion than others, that 

age is a factor regarding the degree to which children 

are susceptible to suggestion, and that the type of 

questions employed during the interview process is 

significant in achieving a reliable result. 

Dr. Huffman’s testimony was permitted solely for 

its educational value to provide general information 

about children’s memory in the courtroom due to 

repeated interviews and the effects of suggestion on 

memory to assist you in evaluating the evidence and 

determining the facts. 

. . . . 

Using the general educational information 

supplied by Lieutenant Commander Talmadge and Dr. 

Huffman, the specific information regarding the 

clinical evaluations of [the victim and her brother] 

supplied by Dr. Heidt-Kozisek, your own observations 

in court, your own experience in dealing with people, 

and all other factors I mentioned in determining 

witness credibility, it is your function to determine 

the credibility of the witnesses, the believability of 

their testimony and, ultimately, the facts of this 

case. 

 Before the military judge gave these instructions to the 

members, both counsel had the opportunity to review the 
United States v. Foster, No. 06-0238/NA 

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instructions. Defense counsel did not object and in fact agreed 

that the military judge had summarized the specialized and 

educational testimony “fairly and accurately.” Government 

counsel objected to the instructions on several grounds but 

those objections were overruled by the military judge.2 

Government counsel then requested that the military judge 

instruct the members that they were not bound by his summaries. 

The military judge agreed and subsequently amended the 

Government’s proposed version of that instruction as follows: 

Now, you are not bound by my summary above of the 

testimony provided by Dr. Heidt-Kozisek, Lieutenant 

Commander Talmadge and Dr. Huffman. That summary is 

provided merely to assist you in understanding their 

testimony. It is not evidence, and it is not intended 

to be a comprehensive summary of every question asked 

of these witnesses and their answers to those 

questions. I again instruct you that you must base 

the determination of the issues in this case on the 

evidence as you remember it. 

Foster argues on appeal that the military judge plainly 

erred by not giving a more detailed and accurate instruction. 

While Foster argues that the military judge committed plain 

error in regard to the expert witness instruction, he does not 

rely on that alleged error as a basis for reversal in and of 

 

2

 The Government argued: the summary of the Government’s expert 

witness’s testimony should not include a concession that she 

made in direct examination; Dr. Huffman’s summary should be more 

specific so that it reflected several particular points that 

assisted the Government’s case; and finally, the military judge 

should not use the summaries at all but rather employ the 

standard expert testimony instruction. 
United States v. Foster, No. 06-0238/NA 

17

itself, but rather as further evidence of the military judge’s 

partisanship. Under these circumstances we will evaluate the 

instruction under the test established in Quintanilla for those 

instances where a military judge’s impartiality is challenged.3

 

See also Acosta, 49 M.J. at 18. 

Foster does not articulate exactly what the instruction 

should have said, but his complaint focuses on the military 

judge’s characterization of Dr. Huffman’s testimony as “general 

information,” which Foster considers inferior to the military 

judge’s characterization of the testimony of the Government 

witness as “specialized.” Foster asserts that together with the 

military judge’s examination of Dr. Huffman, the instruction 

essentially told the members that Dr. Huffman’s testimony was 

worthless. The Government responds on appeal that the military 

judge’s instructions were accurate. 

Within certain bounds, military judges can comment upon and 

summarize evidence admitted in the form of expert witness 

testimony. Rule for Courts-Martial (R.C.M.) 920(e)(7) states 

that instructions on findings shall include “[s]uch other 

explanations, descriptions, or directions as may be necessary 

 

3

 “When a military judge’s impartiality is challenged on appeal, 

the test is whether, taken as a whole in the context of [the] 

trial, [the] court-martial’s legality, fairness, and 

impartiality were put into doubt by the military judge’s 

actions.” United States v. Quintanilla, 56 M.J. 37, 78 

(C.A.A.F. 2001). 
United States v. Foster, No. 06-0238/NA 

18

and which are properly requested by a party or which the 

military judge determines, sua sponte, should be given.” In 

moving beyond benchbook instructions, however, military judges 

must use caution not to do so in a manner that either places 

undue emphasis on or minimizes the importance of expert 

testimony.4

 Cf. United States v. Washington, 63 M.J. 418, 425 

(C.A.A.F. 2006) (“A particular formula is not required in 

administering an oath or affirmation, although adherence to the 

benchbook formula will minimize dispute.”). 

Expert testimony is appropriate where “scientific, 

technical, or other specialized knowledge will assist the trier 

of fact to understand the evidence or to determine a fact in 

issue . . . .” Military Rules of Evidence (M.R.E.) 702. When 

an individual testifies under M.R.E. 702, it is precisely 

because the military judge has found that individual to hold the 

requisite qualifications of an expert. The members are entitled 

to be informed of that designation and a military judge must not 

impose his or her own views to either diminish or enhance that 

important role. We find that the military judge erred in 

failing to use the term “expert” and by substituting that term 

with the terms “specialized” and “educational.”

 

4

 See Dep’t of the Army, Pamphlet 27-9, Legal Services, Military 

Judges’ Benchbook ch. 7, para. 7-9-1 (2002). 
United States v. Foster, No. 06-0238/NA 

19

Although we find that the military judge erred in this regard, 

we do not believe that the instructions raise any reasonable 

doubt about the military judge’s impartiality. See United 

States v. Cooper, 51 M.J. 247, 252 (C.A.A.F. 1999). While the 

military judge’s instructions on expert testimony reflected his 

personal views as to the value of that testimony, his refusal to 

use the term “expert” applied equally to both parties’ witnesses 

and we are not persuaded that the term “educational testimony” 

is critical of Dr. Huffman or prejudicial to Foster’s defense. 

We conclude that Foster has failed to demonstrate that these 

unchallenged expert witness instructions affected the trial’s 

legality, fairness or impartiality. 

4. Comments made by the military judge outside the 

members’ presence

 Foster argues that comments made by the military judge 

during an Article 39(a), UCMJ, session further demonstrate his 

bias against Dr. Huffman. During this hearing, which was held 

outside the hearing of the members, the military judge made 

several intemperate statements concerning Dr. Huffman’s 

experience, ego and the need to control her testimony. While 

the military judge’s language was inappropriate we do not 

believe that this personal expression of irritation impacted 

Foster’s right to a fair trial in light of the fact that the 

comments were not heard by the court-martial members. See

United States v. Reynolds, 24 M.J. 261, 264 (C.M.A. 1987) 
United States v. Foster, No. 06-0238/NA 

20

(upholding harsh comments used to exercise control over 

proceedings when given outside the presence of the court 

members). 

Conclusion

 Foster has failed to present sufficient evidence to 

overcome the strong presumption of a military judge’s 

impartiality. Although the military judge’s conduct at times 

departed from judicial propriety, a reasonable observer would 

conclude that in the context of the whole trial, his actions did 

not compromise the court-martial’s legality, fairness, or 

impartiality. 

Decision

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.