CORE CRIMINAL LAW SUBJECTS: Evidence: Generally

2013 (September Term)

United States v. Knapp, 73 M.J. 33 (where an appellant has not preserved an objection to evidence by making a timely objection, that error will be forfeited in the absence of plain error; a timely and specific objection is required so that the court is notified of a possible error, and so has an opportunity to correct the error and obviate the need for appeal; to be timely, an objection must normally be made before the answer is given, although some courts permit objections or motions to strike immediately after the answer). 

United States v. Payne, 73 M.J. 19 (with respect to the adequacy of evidentiary objections, the law does not require the moving party to present every argument in support of an objection, but does require argument sufficient to make the military judge aware of the specific ground for objection if the specific ground was not apparent from the context). 

2012 (September Term)

United States v. Coleman, 72 M.J. 184 (a military accused has the right to obtain favorable evidence under Article 46, UCMJ, as implemented by RCM 701–703; Article 46 and its implementing rules provide greater statutory discovery rights to an accused than does his constitutional right to due process). 

United States v. Lubich, 72 M.J. 170 (at trial, the government bears the burden of establishing an adequate foundation for admission of evidence against an accused; the government may meet its burden of proof with direct or circumstantial evidence). 

2011 (September Term)

United States v. Hayes, 71 M.J. 112 (argument by trial counsel and statements by the military judge are not evidence).

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (no evidentiary rule can deny an accused of a fair trial or all opportunities for effective cross-examination). 

(time does not affect all evidence equally).

United States v. Sweeney, 70 M.J. 296 (to challenge evidence at trial, an accused must state the specific ground of objection, if the specific ground was not apparent from the context). 

United States v. Baker, 70 M.J. 283 (as set forth in MRE 321(a)(1), MRE 321(a)(2)(B), and MRE 321(d)(2), in determining the admissibility of eyewitness identification, a trial court applies a two-prong test: (1) was a pretrial identification unnecessarily suggestive; and (2) if the pretrial identification was unnecessarily suggestive, was it conducive to a substantial likelihood of misidentification; the second inquiry centers on the reliability of the identification as determined by an application of the five Biggers factors (Neil v. Biggers, 409 US 188 (1973)): the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of the witness’s prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation); if a pretrial identification is not unnecessarily suggestive, there is no need to proceed to the Biggers factors to determine whether the identification was conducive to a substantial likelihood of misidentification). 

(against the Biggers reliability factors (Neil v. Biggers, 409 US 188 (1973)) is to be weighed the corrupting effect of the suggestive identification itself).  

(even if the pretrial identification is ultimately held inadmissible, MRE 321(d)(2) provides that a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification). 

(with respect to pretrial identification, suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous). 

(with respect to pretrial identification, showing a suspect singly to a victim is pregnant with prejudice; the message is clear: the police suspect this man; that carries a powerfully suggestive thought; when the subject is shown singly, havoc is more likely to be played with the best-intended recollections). 

(in this case, weighing the evidence in the light most favorable to the prevailing party, the military judge did not abuse his discretion when he held that the initial pretrial identification procedure in which the assault victim was shown a single digital photograph of the accused, following a police officer’s comment that they had found someone that the victim should take a look at, was unnecessarily suggestive; in addition, the image of the accused shown to the victim was displayed on a relatively small digital camera screen and depicted a bike rider without a helmet or sunglasses, unlike the bike rider that the victim had encountered; and, the victim only mentioned that the accused might have had a mustache after she viewed the image, and only then did the police officer zoom-in on the image and confirm the mustache; these factors, coupled with the suggestive nature of a show-up photo identification procedure, created a scenario that was unnecessarily suggestive). 

(in this case, under the totality of the circumstances, the assault victim’s identification of the accused as her assailant, following an unnecessarily suggestive pretrial identification procedure in which the victim was shown a single digital photograph of the accused, was not reliable, supporting suppression of the identification, where although the victim gave an accurate description of the accused and had a high level of certainty in the accuracy of her description, she was nearsighted and had only a few moments to view her attacker, who was wearing a helmet and sunglasses, and was panicked and focused on getting away during their encounter). 

(in determining that an assault victim’s in-court identification of the accused was the result of an impermissibly suggestive show-up pretrial identification procedure in which the victim was shown a single digital photograph of the accused, the military judge did not abuse his discretion where his analysis of the five Biggers factors (Neil v. Biggers, 409 US 188 (1973)) was fairly supported by the record and not clearly erroneous and where his conclusion that the show-up identification was unnecessarily suggestive was not arbitrary or clearly unreasonable).  

United States v. Gaddis, 70 M.J. 248 (the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process). 

(military judges retain wide latitude to determine the admissibility of evidence - a determination that includes weighing the evidence’s probative value against certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury).

United States v. Eslinger, 70 M.J. 193 (the Military Rules of Evidence are applicable to sentencing and provide procedural safeguards to ensure the reliability of evidence admitted during sentencing; thus, a lay witness must always have a proper foundation to offer an opinion). 

United States v. Sullivan, 70 M.J. 110 (evidence must satisfy the rules of evidence). 

United States v. Clark, 69 M.J. 438 (an accused’s lack of response or reaction to an accusation is not demeanor evidence, but a failure to speak that may not be used as substantive evidence against him). 

 

(demeanor evidence is evidence that describes or portrays outward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions; in its traditional sense, demeanor merely refers to the nonverbal conduct of a testifying witness or of the accused while on the witness stand or in the courtroom, rather than evidence counsel may seek to formally admit under the rules of evidence; however, demeanor evidence may also include physical evidence (a photograph) or real evidence, as in the case of physical observations made by a witness testifying, including other exemplars used to identify the accused (e.g., where the suspect was made to stand, to assume a stance, to walk, or to make a particular gesture); furthermore, an accused’s demeanor has been admitted where it is relevant to an accused’s consciousness of guilt under MRE 404(b), such as in cases of an accused fleeing from the scene of a crime or destroying evidence, or in cases of witness or prosecutor intimidation; these categories of evidence of an accused’s demeanor are generally nontestimonial and thus admissible and subject to appropriate comment where relevant under the rules of evidence; demeanor evidence may also be testimonial, however, such as where an accused points to the scene of a crime and then to himself while nodding his head up and down in response to police questioning). 

 

(when assessing the admissibility of the evidence of an accused’s demeanor, a military judge must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the judge analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the judge then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance). 

 

(demeanor evidence is relevant to an accused’s consciousness of guilt only in cases where the inference of guilt is clear). 

 

(subtle physical demeanor is not admissible as relevant to an accused’s consciousness of guilt, because it is equally susceptible to other inferences).


United States v. Pope, 69 M.J. 328 (demonstrative evidence - also called illustrative evidence - illustrates or clarifies the testimony of a witness; demonstrative evidence is admitted solely to help witnesses explain their testimony; if the evidence is used to prove a complex, central, or difficult to understand point, then it may have a place in the court-martial; however, demonstrative 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).

 

(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; thus, there is no abuse of discretion under MRE 403 when the challenged demonstrative evidence was relevant, highly probative of critical issues, and not unfairly prejudicial).

 

(admissible underlying testimony is a necessary predicate for the introduction of otherwise relevant and material demonstrative evidence). 

 

(the military judge abused his discretion by admitting a green detoxification drink bottle as demonstrative evidence where (1) there was no evidence that appellant consumed detoxification drinks before learning she had tested positive for cocaine on the urinalysis test underlying the charged offense, resulting in the drinks having minimal to no probative value with respect to whether appellant’s drug usage was knowing and therefore wrongful, (2) the demonstrative evidence was not helpful because the members could have easily comprehended the testimony about green detoxification drinks without the aid of a physical example purchased by the government, (3) the bottle purchased by the government was not an accurate representation of the bottles described by the witness, where the bottle purchased by the government had a label identifying the drink as a detoxification drink and the bottles seen by the witness in appellant’s possession had no labels at all, and (4) the demonstrative evidence failed the MRE 403 balancing test). 

 

(nontestimonial demeanor evidence does not trigger Fifth Amendment protections). 

 

(although testimonial comments at trial indicated that when appellant was informed of her positive drug test, she was lackadaisical, acted like she did not care, and did not appear surprised, these comments could be viewed as either nontestimonial demeanor evidence or as implicating appellant’s right to remain silent; it is a closer question whether the comments violated MRE 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). 

 

United States v. Staton, 69 M.J. 228 (spoliation refers to the intentional destruction, mutilation, alteration, or concealment of evidence).


2009 (September Term)

United States v. Smith, 68 M.J. 445 (testimony is material if it is of consequence to the determination of an accused’s guilt; in determining whether evidence is of consequence to the determination of an accused’s guilt, an appellate court considers the importance of the issue for which the evidence was offered in relation to the other issues in the case, the extent to which this issue is in dispute, and the nature of other evidence in the case pertaining to this issue).

 
United States v. Green, 68 M.J. 360 (courts in the military justice system may not consider members’ testimony about their deliberative processes).   

2008 (September Term)

United States v. Bush, 68 M.J. 96 (post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant). 

United States v. Matthews, 68 M.J. 29 (it is a well established rule that principles of statutory construction are used in construing the Military Rules of Evidence; when the statute’s language is plain, the sole function of the courts - at least where the disposition required by the text is not absurd - is to enforce it according to its terms; in construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage). 

 

(MRE 101(b) instructs military courts to look to the federal rules and the common law for guidance on evidentiary issues where doing so is not otherwise prescribed in the MCM and insofar as practicable and not inconsistent with or contrary to the UCMJ or the MCM; MRE 101(b) further mandates that, when looking to such federal law, military courts should consider first, the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, and second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law). 

 

(it is well-settled law that testimony revealing the deliberative thought processes of judges is inadmissible).

 

(the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals). 

 

United States v. Wuterich, 67 M.J. 32 (in trials by courts-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe; the President has provided that the parties and the court-martial shall have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process; under RCM 703(f)(1), each party is entitled to the production of evidence which is relevant and necessary; MRE 401 establishes a low threshold of relevance; and, as noted in the nonbinding Discussion accompanying RCM 703(f)(1), relevant evidence is necessary when it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue). 

 

(under RCM 703(f)(4)(C), if the person having custody of evidence requests relief on grounds that compliance with the subpoena or order of production is unreasonable or oppressive, the military judge may direct that the subpoena or order of production be withdrawn or modified; under the rule, the military judge may direct that the evidence be submitted to the military judge for an in camera inspection in order to determine whether such relief should be granted). 


(the military judge abused his discretion in quashing a government’s subpoena for unaired footage of a television interview of the accused regarding the alleged offenses on the grounds that the footage was cumulative without first conducting an in camera review of the requested materials). 
 
(even if a qualified newsgathering privilege applied to cases in the military justice system, such a privilege would not preclude an in camera review by the military judge pursuant to RCM 703(f)(4)(C) under the circumstances where the description of the material at issue -- video outtakes from a specific interview in which appellant discussed the events occurring on the date of and in the place of the charged offenses -- is sufficient to meet a threshold showing of necessity for an in camera review; the military judge could not make an evaluation of necessity under the specific circumstances of this case without reviewing the outtakes for content and context).

 

2008 (Transition)

 

United States v. Reynoso, 66 M.J. 208 (MRE 103(a)(1) states that in order to preserve an objection when the ruling is one admitting evidence, the objecting party must make a timely objection or motion to strike in the record, stating the specific ground of objection, if the specific ground was not apparent from the context; on its face, MRE 103 does not require the moving party to present every argument in support of an objection, but does require argument sufficient to make the military judge aware of the specific ground for objection; in short, MRE 103 should be applied in a practical rather than a formulaic manner). 

 

United States v. Toy, 65 M.J. 405 (federal law rather than state law governs the admissibility of evidence in federal courts; the exclusive application of federal law is expressly and implicitly provided for within the structure of the UCMJ; likewise, the corresponding Military Rules of Evidence are intended to provide a uniform standard of justice to members of the armed forces, regardless of where they are stationed or in which armed force they serve). 


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