Evidence

Rule 101

  1. militarydefenselawyers008Scope. The Military Rules of Evidence are applicable to courts-martial, including summary courts-martial, to the extent and exceptions stated in Rule 1101.
  2. Rule 1101. Applicability of rules.
    1. Rules applicable. Except as otherwise provided in this Manual, these rules apply generally to all courts-martial, including summary courts-martial; to proceedings pursuant to Article 39(a); to limited fact-finding proceedings ordered on review; to proceedings in revision; and to contempt proceedings except those in which the judge may act summarily.
    2. Rules of privilege. The rules with respect to privileges in Section III and V apply to all stages of all actions, cases, and proceedings.
    3. Rules relaxed. The application of these rules may be relaxed in sentencing proceedings as provided under R.C.M. 1001 and otherwise as provided in this manual.
    4. Rules inapplicable. These rules (other than with respect to privileges and MRE 412) do not apply in investigative hearings pursuant to Article 32; proceedings for vacation of suspension of sentence pursuant to Article 72; proceedings for search authorizations; proceedings involving pretrial restraint; and in other proceedings authorized under the code or this Manual and not listed in subdivision (a).
  3. Secondary Sources. Rule 101 (b). If not otherwise prescribed in the Manual or rules, courts-martial will first apply the rules of evidence recognized in the trial of criminal cases in the United States district courts; and secondly, the rules of evidence at common law. United States v. Toy, 65 M.J. 405, 410 (2008).

Rule 103. Rulings on Evidence

  1. Rulings on Evidence. This rule imposes significant responsibility on counsel to raise and preserve evidentiary questions for review.

    1. Effect of Erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless the ruling materially prejudices a substantial right of a party, and
      1. Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record; stating the specific ground of objection, if the specific ground was not apparent from the context;
      2. Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the military judge by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. The standard provided in this subdivision does not apply to errors involving requirements imposed by the Constitution of the United Sates as applied to members of the armed Air Force Appellate Defense Division  forces except insofar as the error arises under these rules and this subdivision provides a standard that is more advantageous to the accused than the constitutional standard.
    2. Plain error. Nothing in these rules precludes taking notice of plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge.
  2. Objections to evidence. Rule 103(a)(1): Failure to make specific (correct), timely (meaning at the earliest possible time) objection at trial waives issue for appeal, absent a “plain error;”

  3. Preserving Issues. Counsel are not required to cite evidentiary rules by number in order to adequately preserve objections for later appellate review. So long as counsel makes sufficient arguments to make the issue known to the military judge, the issue will be preserved. United States v. Datz, 61 M.J. 37 (2005). While MRE 103 does not require the moving party to present every argument in support of an objection, it does require argument sufficient to make the military judge aware of the specific ground for objection. MRE 103 should be applied in a practical rather than a formulaic manner. United States v. Reynoso, 66 M.J. 208 (2008).
  4. Where the witness’ answer is objectionable, but it has been heard by the panel, the opponent must seek a curative instruction (to disregard the testimony) or a mistrial. Declaration of a mistrial lies within the sound discretion of the judge, United States v. McGeeney, 41 M.J. 544 (N-M. Ct. Crim. App. 1994), and should only be granted where circumstances demonstrate the necessity to prevent a manifest injustice to the accused. United States v. Dancy, 38 M.J. 1 (C.M.A. 1993).
  5. Offer of Proof. Rule 103(a)(2): If the military judge sustains an objection to the tender of evidence, the proponent generally must make an offer to preserve the issue for appeal. The offer should include the substance of the proffered evidence, the affected issue, and how the issue is affected by the judge’s ruling. United States v. Means, 24 M.J. 160 (C.M.A. 1987) and United States v. Viola, 26 M.J. 822 (A.C.M.R. 1988).
  6. Repeating Objections. Counsel do not have to repeat objections during trial if they first obtain unconditional, unfavorable ruling from the military judge in out- of-court session. United States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App. 1995). However, a preliminary, tentative ruling may require a subsequent objection to preserve the issue for appeal. United States v. Jones, 43 M.J. 708 (A.F. Ct. Crim. App. 1995). Rule 103 also applies at sentencing to the admission of documents from the accused’s personnel records. See United States v. Kahmann, 59 M.J. 309 (2004) (holding that where defense counsel failed to object, the military judge did not commit plain error in admitting a summary court-martial conviction record that did not indicate on its face whether the accused had received Booker counseling or whether mandatory review of the conviction had taken place under Art. 64).

Rule 105. Limited Admissibility

militarylawyers926222015When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly.

  1. A limiting instruction may be an appropriate alternative to exclusion of evidence. See, e.g., United States v. Dorsey, 16 M.J. 1 (C.M.A. 1983) (exclusion of Rule 412 evidence); United States v. Ureta, 44 M.J. 290 (1996), cert. denied, 117 S. Ct. 692 (1997) (prior inconsistent statements offered for impeachment); United States v. Barrow, 42 M.J. 655 (A.F. Ct. Crim. App. 1995) (uncharged misconduct).
  2. The rule embodies the view that, as a general rule, evidence should be received if it is admissible for any purpose. The rule places the major responsibility for the limiting instruction upon counsel. Counsel should state the grounds for limiting the evidence outside the hearing of the members. Counsel should offer, and the court may request, the specific language to use. The limiting instruction may be given at the time the evidence is received or as part of the general instructions, or at both times.

Rule 106. Remainder of or Related Writings or Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

  1. In United States v. Rodriquez, 56 M.J. 336 (2002), the CAAF held that in the military there are two distinct rules of completeness, Rule 106 and Rule 304(h)(2). CAAF held that Rule 106 applies when fairness demands that the rest of the evidence be considered contemporaneously with the portions of the evidence offered by the opposing side. They adopted a standard regarding Rule 304(h)(2) that allows for admissibility of statements made by the accused when the defense introduces the remainder of a statement or statements that are explanatory or relevant to the confession or admission of the accused previously offered by the government. This is allowed even if the statements the defense seeks to admit are otherwise inadmissible hearsay. CAAF requires a case-by- case determination when the defense attempts to admit a series of statements as part of the original confession or admission in order to determine if they are part of an ongoing statement or a separate transaction or course of action.
  2. In the context of a confession or an admission, read this rule in connection with Rule 304(h)(2) (where only part of the alleged admission or confession is introduced, the defense may introduce other portions). Other portions admitted by the defense do not need to overcome a hearsay objection. United States v. Benton, 54 M.J. 717 (A. Ct. Crim. App. 2001). However, note that this has the potential to open the door to an accused’s character – the Goldwire trap. In United States v. Goldwire, 55 M.J. 139 (2001), the CAAF held that when defense counsel uses the rule of completeness to admit portions of their client’s statements into evidence through cross examination of a government witness they open the door to reputation and opinion testimony regarding the truthfulness of the accused. CAAF analyzed the potential application of the rule of completeness under both the federal and military rules, as well as the common law doctrine of completeness.
  3. Supplementary Statements. In United States v. Foisy, 69 M.J. 562 (N.M. Ct. Crim. App. 2010), the accused gave a sworn statement to an NCIS agents admitting that he had sex with the victim, but insisting that it was consensual. He also described his interactions with the victim which led him to believe that it was consensual. Another NCIS agent took a second statement from the accused which was labeled as a “supplementary statement.” The facts in supplementary statement began immediately before appellant penetrated the victim. At trial, the government admitted only the supplementary statement. The defense attempted to admit the first statement under the rule of completeness. The government objected and the military judge sustained the objection. The Navy-Marine Court of Criminal Appeals held that under MRE 304(h)(2), “where the Government links two statements by constructing them as a statement and a ‘supplement’ to that statement, the Government may not deconstruct those statements for the purposes of trial where the admission of the second statement standing alone would create a misimpression on the part of the fact finder as to an accused’s actual admissions.” The military judge erred in not allowing the defense to introduce the first statement.

Rules applicable.