Rule 103

  • militarydefenselawyers354Rulings on Evidence.
  1. Rulings on Evidence. This rule imposes significant responsibility on counsel to raise and preserve evidentiary questions for review.
    Rule 103. Ruling on Evidence
  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 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.
    1. 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;”
    2. 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).
    3. 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).
    4. 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).
    5. Repeating Objections. Counsel do not have to repeat objections during trial if
      they first obtain unconditional, unfavorable ruling from the military judge in outof-
      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).

Preserving Issues.

Repeating Objections.