UNITED STATES, Appellee 

v. 

Audrey M. POPE, Airman First Class 

U.S. Air Force, Appellant 

No. 10-0447 

Crim. App. No. S31578 

United States Court of Appeals for the Armed Forces

Argued November 9, 2010 

Decided January 31, 2011 

RYAN, J., delivered the opinion of the Court, in which 

EFFRON, C.J., and BAKER and ERDMANN, JJ., joined. STUCKY, 

J., filed a separate opinion concurring in the result. 

Counsel

For Appellant: Captain Andrew J. Unsicker (argued); Major

Darrin K. Johns (on brief); Major Shannon A. Bennett. 

For Appellee: Major Nicole P. Wishart (argued); Captain 

Naomi N. Porterfield and Gerald R. Bruce, Esq. (on brief); 

Colonel Don M. Christensen and Lieutenant Colonel Jeremy S. 

Weber. 

Military Judge: William M. Burd 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Pope, No. 10-0447/AF 

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Judge RYAN delivered the opinion of the Court. 

Contrary to Appellant’s pleas, a panel of officers 

sitting as a special court-martial convicted her of 

wrongful use of cocaine, in violation of Article 112a, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a 

(2006). The panel sentenced Appellant to a bad-conduct 

discharge, confinement for three months, forfeiture of $450 

of pay per month for three months, and reduction to E-1. 

The findings and sentence were approved by the convening 

authority and affirmed by the United States Air Force Court 

of Criminal Appeals. United States v. Pope, No. ACM 

S31578, 2010 CCA LEXIS 152, at *20, 2010 WL 4068930, at *7 

(A.F. Ct. Crim. App. Mar. 8, 2010) (unpublished). 

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. 
United States v. Pope, No. 10-0447/AF 

3

United States v. Pope, 69 M.J. 178 (C.A.A.F. 2010) (order 

granting review). 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. See Article 59(a), UCMJ, 10 U.S.C. § 

859(a) (2006). Finding no other error, the findings and 

sentence are affirmed. 

I. FACTS 

The charged specification stemmed from Appellant’s 

positive urinalysis result in a random drug test. 

Appellant reported to the drug testing center on March 24, 

2008 at 3:09 pm. Appellant “appeared nervous” at the site. 

She stayed until about 4:30 pm but failed to produce a 

sample in a quantity sufficient for testing. Appellant was 

instructed to return the next morning at 6:30 am to provide 

a specimen, but she did not report back to the testing 

center until 2:39 pm on March 25, 2008. According to 

testimony by Government witnesses who worked at the site, 

this time Appellant “was really antsy because she had to go 
United States v. Pope, No. 10-0447/AF 

4

really, really, really bad” and she produced a sample 

almost immediately, signing out at 2:46 pm. That sample 

subsequently tested positive for cocaine at nearly ten 

times the Department of Defense cutoff level. 

Appellant stipulated to the following facts: (1) the 

urine specimen tested was Appellant’s urine, (2) the urine 

specimen “was properly handled and processed” by the drug 

testing laboratory, and (3) the test results “accurately 

reported the presence of the cocaine metabolite 

Benzoylecgonine” in Appellant’s urine sample. The only 

issue at trial was whether Appellant’s cocaine usage was 

knowing and therefore “wrongful.” Article 112a, UCMJ. 

Appellant’s roommate at the time of the urinalysis, 

Airman First Class Krystal Elaine Sweeney, testified that 

Appellant admitted that she had “gotten messed up” with her 

brother, a former drug dealer who bought Appellant “green 

drinks” that “cost around $50.00” to “clean out [her] 

system” when “she would get messed up.” Each drink 

consisted of a green liquid in a clear glass bottle with no 

label. Sweeney testified that she saw bottles of these 

green drinks in their shared refrigerator -- and saw 

Appellant drink them -- “[a] few times. . . . maybe three 

or four times” during the three-to-four-month period they 

were roommates. However, Sweeney and Appellant did not 
United States v. Pope, No. 10-0447/AF 

5

become roommates until March 24, 2008 -- the date Appellant 

first reported to the drug testing center. Sweeney 

testified that she did not remember seeing any green drinks 

on that day; she could not recall the first time she saw 

such a bottle. Trial counsel conceded to the military 

judge that Sweeney did not see Appellant with a green drink 

prior to her urinalysis. 

Immediately before Sweeney’s testimony, trial counsel 

requested an Article 39(a), UCMJ, 10 U.S.C. § 839(a) 

(2006), session. The Government sought to introduce a 

representative example of a green detoxification drink -- 

purchased by a Government investigator -- as a prop or 

replica under the doctrine of similar physical evidence. 

Trial counsel specifically noted that “the court members 

would be instructed that the evidence is not actually 

connected with the case, but is being admitted for 

illustrative purposes only.” Defense counsel objected on 

relevance, noting that “there is no tie to my client with 

regard to that bottle” and that Appellant’s roommate did 

not see Appellant with any such drink prior to her 

urinalysis. The military judge overruled the objection and 

admitted the green detoxification drink. When asked if the 

bottle appeared to be “substantially the same type of 

bottle, the same type of liquid” that she saw in 
United States v. Pope, No. 10-0447/AF 

6

Appellant’s possession, Sweeney responded in the 

affirmative, with the exception that the exhibit had a 

label indicating it was a detoxification drink whereas 

Appellant’s bottles did not. The members were never 

instructed that this bottle was for demonstrative purposes 

only. 

The Government also introduced expert testimony that 

delay, consuming large volumes of water, and drinking 

detoxification agents can cause “the concentration [of the 

cocaine metabolite] to decrease over time.” 

II. DISCUSSION 

 This Court will not reverse a conviction for an error 

of law unless that error materially prejudiced an accused’s 

substantial rights. Article 59(a), UCMJ; United States v. 

Powell, 49 M.J. 460, 465 (C.A.A.F. 1998). We review de

novo whether the Government has met its burden of 

establishing that the error did not have a substantial 

influence on the findings in the context of the entire 

case. United States v. Yammine, 69 M.J. 70, 78 (C.A.A.F. 

2010). 

A. 

 Appellant alleges that there were two errors related 

to the demonstrative evidence: (1) the military judge 

abused his discretion in admitting it; and (2) it was error 
United States v. Pope, No. 10-0447/AF 

7

for the military judge to fail to give a limiting 

instruction on the use of the demonstrative evidence. We 

agree. 

1. 

Demonstrative evidence -- also called illustrative 

evidence -- “illustrates or clarifies the testimony of a 

witness.” United States v. Heatherly, 21 M.J. 113, 115 n.2 

(C.M.A. 1985). Demonstrative evidence is admitted solely 

to help witnesses explain their testimony. Carson v. 

Polley, 689 F.2d 562, 579 (5th Cir. 1982). “[I]f the 

evidence is used to prove a complex, central, or difficult 

to understand point, [then] it may have a place in the 

court-martial.” Stephen A. Saltzburg et al., Military 

Rules of Evidence Manual § 403.02[9], at 4-33 (6th ed. 

2006). 

However, “[d]emonstrative exhibits are inadmissible 

where they do not illustrate or make clearer some issue in 

the case; that is, where they are irrelevant, or where the 

exhibit’s character is such that its probative value is 

substantially outweighed by the danger of unfair 

prejudice.” Benzel v. Keller Indus., Inc., 567 N.W.2d 552, 

558 (Neb. 1997); see also United States v. Aldaco, 201 F.3d 

979, 986 (7th Cir. 2000); Tritek Techs., Inc. v. United 

States, 67 Fed. Cl. 727, 729-30 (Fed. Cl. 2005). 
United States v. Pope, No. 10-0447/AF 

8

“The decision to permit or deny the use of 

demonstrative evidence generally has been held to be within 

the sound discretion of the trial judge.” Heatherly, 21 

M.J. at 115 n.2. Thus, this Court has found no abuse of 

discretion under Military Rule of Evidence (M.R.E.) 403 

when the challenged demonstrative evidence was “relevant, 

highly probative of critical issues, and not unfairly 

prejudicial.” United States v. White, 23 M.J. 84, 88 

(C.M.A. 1986). 

But there are several problems with the demonstrative 

evidence in this case.1

 First, there was no evidence that 

 

1

 We agree that admissible underlying testimony is a 

necessary predicate for the introduction of otherwise 

relevant and material demonstrative evidence. United 

States v. Pope, __ M.J. __ (2) (C.A.A.F. 2011) (Stucky, J., 

concurring in the result). This does not change our view, 

consistent with case law from other jurisdictions, that 

admission of the demonstrative evidence in this case was an 

abuse of discretion under the facts of this case for the 

reasons identified in this opinion. See, e.g., Aldaco, 201 

F.3d at 986 (applying the Fed. R. Evid. 403 balancing test 

to determine that the probative value of a replica shotgun 

outweighed the prejudice to a criminal defendant); Finley 

v. Marathon Oil Co., 75 F.3d 1225, 1231 (7th Cir. 1996) 

(noting that judges should require “firm foundations” 

because demonstrative evidence can be “in some cases too 

powerful” a form of evidence, as it can lead a jury “to 

resolve its doubts on the basis of a simple, tangible, 

visible, everyday object of reassuring familiarity”) 

(citations omitted); Tritek Techs., 67 Fed. Cl. at 729-30 

(noting that for demonstrative evidence to be admitted, it 

must comply with the Federal Rules of Evidence, including 

relevance and the Fed. R. Evid. 403 balancing test); 

Overstreet v. State, 877 N.E.2d 144, 168 (Ind. 2007) (“To 

be admissible, [demonstrative] evidence must be 
United States v. Pope, No. 10-0447/AF 

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Appellant consumed detoxification drinks before learning 

she had tested positive for cocaine on the urinalysis test 

underlying the charged offense. Thus, the drinks had 

minimal to no probative value with respect to the only 

material issue in the case -- whether Appellant’s drug 

usage was knowing and therefore wrongful. 

Second, the demonstrative evidence was not helpful; 

the members could have easily comprehended Sweeney’s 

testimony about the green detoxification drinks without the 

aid of a physical example purchased by the Government. See

Benzel, 567 N.W.2d at 557-58. A bottle is neither complex 

nor difficult for a member to envision; thus, the purported 

replica was not sufficiently explanatory or illustrative of 

Sweeney’s testimony to either outweigh its potential 

prejudicial effect or be of help to the members in 

determining a fact at issue. See Overstreet, 877 N.E.2d at 

168; Saltzburg et al., supra, at 4-33. 

Third, the bottle purchased by the Government and 

introduced as a Government exhibit had a label identifying 

 

sufficiently explanatory or illustrative of relevant 

testimony to be of potential help to the trier of fact.”); 

Benzel, 567 N.W.2d at 559-60 (allowing the use of exemplar 

ladders as demonstrative exhibits because they “aided in 

clarifying certain issues” in the case and “were more 

probative than prejudicial”). 
United States v. Pope, No. 10-0447/AF 

10

the drink as a detoxification drink that can “[c]leanse the 

[b]ody” and eliminate toxins. In contrast, the bottles 

seen by Sweeney in Appellant’s possession had no labels at 

all. Thus, the Government exhibit was not in fact a 

replica, demonstrative of the bottles allegedly seen by 

Sweeney in Appellant’s possession. 

Fourth, the demonstrative evidence fails the M.R.E. 

403 balancing test. See White, 23 M.J. at 88. While we 

afford substantial discretion to a military judge’s 

evidentiary rulings, where, as here, an objection invokes 

the M.R.E. 403 balancing test but the military judge fails 

to conduct the test on the record, less deference is due. 

United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009); 

see also United States v. Lebovitz, 669 F.2d 894, 901 (3d 

Cir. 1982). 

Relevant evidence may be excluded when its probative 

value is “substantially outweighed by the danger of unfair 

prejudice . . . or misleading the members.” M.R.E. 403. 

Given that the demonstrative evidence in this case was not 

relevant, had minimal to no probative value, and was not 

even an accurate representation of the bottles described by 

Sweeney, it was an abuse of discretion for the military 

judge to admit it. See United States v. Perry, 37 M.J. 

363, 364-65 (C.M.A. 1993). 
United States v. Pope, No. 10-0447/AF 

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However, we are convinced that the use of the green 

bottle as a demonstrative exhibit had no substantial impact 

on the findings. The offense of wrongful use of cocaine 

has two elements: (1) that the accused used cocaine; and 

(2) that the use by the accused was wrongful. Manual for 

Courts-Martial, United States pt. IV, para. 37.b(2) (2008 

ed.) (MCM). Because Appellant stipulated to the validity 

of the positive urinalysis test, only the second element -- 

wrongfulness -- was contested at trial. Cocaine usage is 

not wrongful if the usage occurs “without knowledge of the 

contraband nature of the substance.” MCM pt. IV, para. 

37.c(5)(C). Drug use “may be inferred to be wrongful in 

the absence of evidence to the contrary.” MCM pt. IV, 

para. 37.c(5). In this case, the defense did not produce 

any evidence showing that Appellant’s use of cocaine was 

without knowledge, and thus not wrongful. 

Moreover, the Government presented evidence of 

Appellant’s admission to Sweeney that she had “messed up.” 

The Government also presented circumstantial evidence of 

Appellant’s consciousness of guilt, including: her nervous 

behavior at the testing site, her initial failure to 

provide a sufficient sample, and her eight-hour delay in 

reporting to the drug testing center the following day. 
United States v. Pope, No. 10-0447/AF 

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2. 

Whether a jury was properly instructed is a question 

of law reviewed de novo. United States v. Schroder, 65 

M.J. 49, 54 (C.A.A.F. 2007). Failure to object to an 

instruction given or omitted waives the objection absent 

plain error. Rule for Courts-Martial (R.C.M.) 920(f). 

“The plain error standard is met when: (1) an error was 

committed; (2) the error was plain, or clear, or obvious; 

and (3) the error resulted in material prejudice to 

substantial rights.” United States v. Maynard, 66 M.J. 

242, 244 (C.A.A.F. 2008) (citation and quotation marks 

omitted). 

When demonstrative evidence is admitted, the military 

judge is required to properly instruct the members that the 

evidence is for illustrative purposes only. David A. 

Schlueter et al., Military Evidentiary Foundations § 4-

13[4] (3d ed. 2007); see also Finley, 75 F.3d at 1231 (“The 

trial judge must make sure that the jury is not misled 

concerning the actual meaning of the object in the context 

of the litigation.”). Here, the military judge failed to 

give such an instruction. However, because the error did 

not materially prejudice Appellant’s rights, it does not 

constitute prejudicial plain error. Maynard, 66 M.J. at 

244. 
United States v. Pope, No. 10-0447/AF 

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In this case, there is little danger that the members 

would have confused the demonstrative evidence for actual 

evidence. Testimony clearly established that the green 

detoxification drink was bought by the Government as a 

representative example of the types of drinks that 

Appellant allegedly possessed. When the drink was admitted 

into evidence, an Air Force investigator testified that she 

bought the drink at a store on “direction from legal to 

. . . see if there was an item that pretty much matched up 

to this description . . . and this was the closest that I 

found.” On cross-examination, defense counsel’s 

questioning clarified that the investigator (1) had bought 

the bottle at a store, and (2) never went to Appellant’s 

room to see if she possessed similar bottles. Under these 

circumstances, the members would not have mistaken the 

demonstrative evidence for substantive evidence. 

Furthermore, given the overwhelming evidence of Appellant’s 

guilt, we are convinced that the absence of a limiting 

instruction had no substantial effect on the verdict. 

B. 

 Whether there has been improper reference to an 

accused’s invocation of her constitutional right to remain 

silent -- in testimony or argument -- is a question of law 

that this Court reviews de novo. United States v. Moran, 
United States v. Pope, No. 10-0447/AF 

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65 M.J. 178, 181 (C.A.A.F. 2007). Where, as here, there 

are no objections at trial, this Court reviews for plain 

error. United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 

2009). 

Trial counsel elicited testimony that Pope was 

“lackadaisical” and “didn’t care” when informed of her 

positive drug test. On direct examination, trial counsel 

asked the Air Force investigator, “what was [Appellant’s] 

reaction?” to being told of her urinalysis results. The 

investigator replied, “[v]ery lackadaisical, no response 

whatsoever, just sat there as if she didn’t care.” On 

redirect, trial counsel revisited this line of inquiry. 

When the investigator stated that “[a]gain, she acted as 

though she didn’t care,” trial counsel asked, “[w]hat was 

her demeanor like?” The investigator responded, “[v]ery 

lackadaisical. I wouldn’t say she didn’t act surprised, 

but I would just say maybe she just didn’t care.” 

In closing argument, trial counsel referenced this 

testimony: “You heard [the investigator] say that 

[Appellant] actually appeared lackadaisical. It didn’t 

seem to faze her when she was notified that she tested 

positive for cocaine because she had used cocaine. She 

wasn’t surprised that she had tested positive for cocaine.” 
United States v. Pope, No. 10-0447/AF 

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On the one hand, it is constitutional error to admit 

evidence of -- or comment on in argument -- an accused’s 

post-apprehension silence as evidence of guilt. United 

States v. Alameda, 57 M.J. 190, 198-99 (C.A.A.F. 2002); 

M.R.E. 301(f)(3). On the other hand, nontestimonial 

demeanor evidence does not trigger Fifth Amendment 

protections. Pennsylvania v. Muniz, 496 U.S. 582, 591-92 

(1990); United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 

1998). Because the comments at issue could be viewed as 

either nontestimonial demeanor evidence or as implicating 

Appellant’s right to remain silent, it is not “plain, or 

clear, or obvious” that they were comments on Appellant’s 

constitutional right to remain silent. See Paige, 67 M.J. 

at 449 (citation and quotation marks omitted). While a 

closer question, it is also not obvious that the comments 

violated M.R.E. 304(h)(3) (stating that “[a] person’s 

failure to deny an accusation of wrongdoing concerning an 

offense for which at the time of the alleged failure the 

person was under official investigation or was in 

confinement, arrest, or custody does not support an 

inference of an admission of the truth of the accusation”). 

But even if the comments constituted either 

constitutional or evidentiary error, any such error was not 

prejudicial under either a constitutional or 
United States v. Pope, No. 10-0447/AF 

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nonconstitutional standard. The three statements at issue 

were minor comments in the context of the entire trial and 

argument. See Moran, 65 M.J. at 187-88. The Government 

presented overwhelming evidence of Appellant’s guilt, 

including the uncontested urinalysis results, her admission 

to Sweeney, and Appellant’s suspicious behavior at the 

testing site. Appellant’s theory of defense was unclear 

and, therefore, not strong. For these reasons, we are 

convinced that the testimony and argument at issue were not 

factors in obtaining Appellant’s conviction. 

C. 

The cumulative effect of all plain errors and 

preserved errors is reviewed de novo. Cf. United States v. 

Gray, 51 M.J. 1, 61 (C.A.A.F. 1999). Under the cumulativeerror doctrine, “a number of errors, no one perhaps 

sufficient to merit reversal, in combination necessitate 

the disapproval of a finding.” United States v. Banks, 36 

M.J. 150, 170-71 (C.M.A. 1992) (citation and quotation 

marks omitted). This Court will reverse only if it finds 

the cumulative errors denied Appellant a fair trial. Id.

at 171.

In this case, there was overwhelming evidence of 

Appellant’s guilt, and neither of the errors related to the 

demonstrative evidence materially prejudiced Appellant’s 
United States v. Pope, No. 10-0447/AF 

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substantial rights. Under these circumstances, Appellant 

was not denied a fair trial. See United States v. 

Dollente, 45 M.J. 234, 242 (C.A.A.F. 1996) (“[C]ourts are 

far less likely to find cumulative error . . . when a 

record contains overwhelming evidence of a defendant’s 

guilt.”). 

III. DECISION 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed. 
United States v. Pope, No. 10-0447/AF 

 STUCKY, Judge (concurring in the result): 

 I concur in affirming the judgment of the United States Air 

Force Court of Criminal Appeals (CCA) but write separately 

because (1) I disagree with the majority’s analysis of Issue I 

-- whether the military judge abused his discretion by admitting 

a bottle as demonstrative evidence -- and (2) I believe Issue 

III -- whether it was plain error to allow trial counsel to 

elicit testimony regarding and comment on Appellant’s right to 

remain silent -- warrants some additional discussion. 

I. 

 On March 24, 2008, Appellant was ordered to provide a 

sample for a random urinalysis. She reported, but the sample 

she provided was of insufficient quantity and she was directed 

to report again on the following day, March 25. Rather than 

doing so at 6:30 a.m. as directed, Appellant reported at 2:39 

p.m. The sample Appellant provided on March 25 tested positive 

for cocaine metabolites. 

 Airman First Class (A1C) Sweeney was assigned to the 

Security Forces technical training school in the same training 

squadron as Appellant. On March 24, 2008, A1C Sweeney began 

training and was assigned to room with Appellant. They would be 

roommates for the next three to four months. 
United States v. Pope, No. 10-0447/AF 

2

Appellant told A1C Sweeney that, “when she would get messed 

up, that her brother bought these drinks, these green drinks.” 

Appellant said these drinks “clean out your system for a few 

days.” Appellant kept some of these drinks in the refrigerator. 

A1C Sweeney testified that Appellant told her that, prior to 

testing positive, Appellant had gone out with her brother and 

“gotten messed up” or “messed up.” 

The testimony in the record provided that Appellant had the 

drinks in her possession or would acquire them from her brother, 

used them when she “messed up,” and that she “messed up” before 

providing the sample in question. While A1C Sweeney testified 

that she did not remember seeing green bottles in the 

refrigerator on March 24, and she could not remember whether she 

had seen Appellant drink one before Appellant provided the March 

25, 2008, sample, there was enough evidence for the panel to 

infer that she had. I believe this determination was a question 

of fact and, as such, was for the panel to decide. 

More importantly, because the bottle is demonstrative -- 

not substantive or real -- evidence, if the underlying testimony 

is admissible, the basis for the bottle’s admission for 

illustrative purposes has been formed. See United States v. 

Humphrey, 279 F.3d 372, 376-77 (6th Cir. 2002) (upholding the 

admission of 107 coin bags as demonstrative evidence used to 

show what a large number of coin bags looks like); United States 
United States v. Pope, No. 10-0447/AF 

3

v. McIntosh, 23 F.3d 1454, 1456 (8th Cir. 1994) (upholding the 

admission of a firearm as demonstrative evidence when it was 

used to illustrate the testimony of a witness that the witness 

had seen the defendant carry a similar firearm); United States 

v. Golden, 671 F.2d 369, 371-72 (10th Cir. 1982) (upholding the 

admission of a flashlight as demonstrative evidence when a 

witness testified that a similar flashlight was involved in the 

case). 

A1C Sweeney did not see a label on the green drinks 

Appellant acquired and occasionally used. But A1C Sweeney was 

able to provide detail as to the nature of the drink Appellant 

used and a description of the bottles from which she drank. 

They looked like “little banded milk bottles,” that were not 

square-shaped. They had “green twist cap[s],” and contained 

green liquid that was “apple-flavored,” as A1C Sweeney 

experienced when Appellant “broke the seal in front of [her]” 

and offered her a drink. Appellant told A1C Sweeney the drinks 

were meant to “clean out your system” and “detox you.” They 

cost around fifty dollars. 

Having followed up on this description, Investigator West 

was able to locate a product that was “right on target with the 

description of the taste, the colors, everything.” Trial 

counsel showed this bottle to A1C Sweeney, and A1C Sweeney 

testified that it looked “just the same minus the label.” 
United States v. Pope, No. 10-0447/AF 

4

Trial counsel sought to introduce a bottle of ProTox Xtreme 

Strength as demonstrative evidence. As this Court’s predecessor 

explained, there is a “distinction . . . between the 

admissibility of substantive evidence and that which is used 

solely for demonstrative purposes.” United States v. Heatherly, 

21 M.J. 113, 115 (C.M.A. 1985). Demonstrative evidence is, by 

definition, used to illustrate testimony rather than to “prove 

or disprove a fact in issue.” Id. at 115 n.2; see also Triteck 

Techs., Inc. v. United States, 67 Fed. Cl. 727, 733-34 (Fed. Cl. 

2005); 2 McCormick on Evidence §§ 212-14 (6th ed. 2006). 

 The majority correctly states that “‘[t]he decision to 

permit or deny the use of demonstrative evidence generally has 

been held to be within the sound discretion of the trial 

judge,’” Heatherly, 21 M.J. at 115 n.2, but appears to apply a 

tougher standard here. United States v. Pope, __ M.J. __ (8) 

(C.A.A.F. 2011). I do not believe testimony must be “complex” 

or “difficult . . . to envision,” in order for demonstrative 

evidence to “be of help to the members in determining a fact at 

issue.” Id. at ___ (9). Demonstrative evidence is not rendered 

inadmissible merely because a court believes the trier of fact 

could have understood the testimony without a prop.1 See, e.g., 

 

1

 I note that this is not the only piece of demonstrative 

evidence introduced in Appellant’s case. The Government was 

also permitted to introduce a “sample collection cup,” of the 

type that would have been used to collect the specimen. This 
United States v. Pope, No. 10-0447/AF 

5

United States v. Aldaco, 201 F.3d 979, 986 (7th Cir. 2000) 

(upholding the admissibility of a shotgun as demonstrative 

evidence and listing cases). 

I would hold that, because the bottle illustrated the 

testimony of A1C Sweeney and Investigator West, the military 

judge did not abuse his discretion in admitting it as 

demonstrative evidence. If I had been the military judge in 

this case, I probably would not have allowed the label in. But 

the label was not unduly prejudicial. It was not overtly 

incriminating and only provided that the drink’s purpose was 

cleansing and detoxification of the system. A1C Sweeney 

testified that this was the exact purpose for which Appellant 

used the green drinks. The testimony also repeatedly made clear 

to the panel that the bottles A1C Sweeney had seen in 

Appellant’s possession did not have labels on them, so the 

members would not have been confused. On the basis of this 

testimony, and because I disagree with the majority’s conclusion 

that “the drinks had minimal to no probative value,” Pope, __ 

M.J. at ___ (10), I do not believe the bottle fails the Military 

 

cup was used to illustrate the testimony of Staff Sergeant 

Williams, a urinalysis observer. I cannot see why the panel 

needed to see a sample cup, but I would not say the military 

judge abused his discretion by allowing it in. 
United States v. Pope, No. 10-0447/AF 

6

Rule of Evidence (M.R.E.) 403 balancing test. Under the 

circumstances, I cannot say admission of the bottle constituted 

an abuse of discretion. 

II. 

 I agree with the majority that it is only nontestimonial 

evidence of demeanor that “does not trigger Fifth Amendment 

protections.” Pope, ___ M.J. at ___ (15). I write separately 

because I believe Appellant’s response to being confronted with 

evidence of her guilt was testimonial and therefore protected 

under the Fifth Amendment and M.R.E. 304(h)(3) (“A person’s 

failure to deny an accusation of wrongdoing . . . does not 

support an inference of an admission of the truth of the 

accusation.”). To me, the question is whether the fair response 

doctrine, an exception to the Fifth Amendment protection, 

applies to permit the testimony or comment. 

 Defense counsel, in an Article 39(a), Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 839(a) (2006), session, 

expressed her intent to present evidence on Appellant’s state of 

mind after being confronted to lay the foundation for an excited 

utterance, under the mistaken impression that Appellant had been 

handcuffed on the way to the Security Forces building. The 

military judge determined that the admissibility of this 
United States v. Pope, No. 10-0447/AF 

7

evidence would be determined in an Article 39(a), UCMJ, session 

rather than in the presence of the members. The follow-up 

Article 39(a) session never occurred. 

 After the conclusion of the Article 39(a) session, on 

direct examination before the court-martial panel, the trial 

counsel elicited testimony from Investigator West regarding 

Appellant’s “reaction” to and “demeanor” when being confronted 

with evidence of her guilt by a law enforcement officer. 

Investigator West testified that, after being informed that her 

sample had come back positive for cocaine, Appellant was “[v]ery 

lackadaisical,” and did not respond. 

During cross-examination, defense counsel asked 

Investigator West whether Appellant had been handcuffed on the 

way to the Security Forces building. Upon hearing that she had 

not, defense counsel apparently abandoned any attempt to lay the 

foundation for an excited utterance. As a result, defense 

counsel rested the defense case without inquiring into 

Appellant’s state of mind when being confronted with evidence of 

her guilt. 

During closing arguments, trial counsel argued that the 

panel should “consider the surrounding circumstances when . . . 

thinking about [Appellant’s] knowledge [that she wrongfully 

ingested cocaine],” and continued on to remind the panel that 

“[s]he wasn’t surprised that she had tested positive for 
United States v. Pope, No. 10-0447/AF 

8

cocaine,” that “[i]t didn’t seem to faze her . . . because she 

had used cocaine.” By commenting on Appellant’s failure to 

respond, trial counsel was asking the members to infer guilt on 

the basis that an innocent person would have denied the 

accusation. 

Trial counsel may not do this if the accused has not opened 

the door under a limited exception such as the fair response 

doctrine. See United States v. Robinson, 485 U.S. 25, 32-34 

(1988); Doyle v. Ohio, 426 U.S. 610, 617-19 (1976); Griffin v. 

California, 380 U.S. 609, 612-14 (1965); United States v. Moran, 

65 M.J. 178, 181-82 (C.A.A.F. 2007); United States v. Alameda, 

57 M.J. 190, 198-99 (C.A.A.F. 2002); United States v. Cook, 48 

M.J. 236, 240 (C.A.A.F. 1998); United States v. Toro, 37 M.J. 

313, 318 (C.M.A. 1993); United States v. Fitzpatrick, 14 M.J. 

394, 398-99 (C.M.A. 1983); see also United States v. VelardeGomez, 269 F.3d 1023, 1028-29 (9th Cir. 2001); United States v. 

Rivera, 944 F.2d 1563, 1568-69 (11th Cir. 1991). 

Had defense counsel actually inquired into Appellant’s 

state of mind during the trial, trial counsel could have been 

permitted under the fair response doctrine to make a limited 

inquiry into her state of mind to counter a defense claim that 

she was in an excited state. But defense counsel, having 

discovered that Appellant had not been handcuffed, abandoned 

this idea and did not open the door. 
United States v. Pope, No. 10-0447/AF 

9

Moreover, trial counsel belied this purpose by later 

arguing that Appellant’s lack of response went to her 

consciousness of guilt. However, I agree with the majority that 

the comments were harmless beyond a reasonable doubt.