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).
(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).
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).
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).
(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).
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).