CORE CRIMINAL LAW SUBJECTS: Evidence: Stipulations

2008 (September Term)

United States v. Campos, 67 M.J. 330 (entering into a stipulation of expected testimony is not necessarily the equivalent of consenting to the admission of the testimony).


(in this case, appellant, who as part of a negotiated pretrial agreement, entered into a stipulation of expected testimony of a psychologist who had expertise in evaluating and treating sexual offenders, waived any right to claim error on the ground that the witness did not personally appear to present live testimony at sentencing in a child pornography prosecution, where the stipulation amounted to an agreement between appellant, defense counsel, and trial counsel that if the witness were called to testify, he would testify under oath as reflected in the document, the military judge provided appellant with a detailed explanation of the stipulation, appellant agreed to the “use of” the stipulation, and defense counsel represented that he desired to enter into the stipulation). 

(after appellant in a child pornography prosecution entered into a stipulation of expected testimony of a psychologist who had expertise in evaluating and treating sexual offenders, defense counsel waived the issue of admissibility of the substance of the stipulation at sentencing by answering “no” when the military judge asked for objections; although the stipulation did not expressly consent to the admission of the witness’s testimony, defense counsel had advance notice of the substance of the testimony, reviewed the expected testimony, and considered the impact of the stipulation on appellant’s case). 


United States v. Fisher, 58 MJ 300 (unless withdrawn or stricken, an admission in a stipulation of fact is binding on the court-martial and may not be contradicted by the parties).


United States v. Terlep, 57 MJ 344 (R.C.M. 811(e) precludes the Government from evidencing facts at a court-martial which "contradict" those agreed to in an accepted stipulation of fact; however, this rule says nothing about precluding the parties from presenting evidence which "goes beyond" the facts in the stipulation; stipulations of fact do not prohibit proof of facts which are neither designated nor necessarily implied in the stipulation).

(the victim’s testimony did not so contradict the stipulation of fact in this case: (1) this stipulation of fact did not expressly state that a rape did not occur that night; (2) the stipulation of fact did not expressly provide that appellant’s assault with his hands on the victim’s "legs," "torso," and "breasts" were the only touchings that occurred that night; (3) it was not necessarily inferable from the sexual assaults stipulated to that a rape did not also occur; and (4) defense counsel, without caveat, indicated his understanding that the stipulation of fact was limited in nature and the parties had additional evidence as to the events of that evening).

(RCM 811(e) did not prohibit trial counsel from presenting evidence as to aggravating facts not expressly or implicitly covered by this stipulation; argument as to the occurrence of a rape not particularly addressed in the stipulation was also not prohibited).


United States v. Clark, 53 MJ 280 (evidence that would be otherwise inadmissible under the Military Rules of Evidence may sometimes be admitted at trial through a stipulation, if the parties expressly agree, if there was no overreaching on the part of the Government in obtaining the agreement, and if the military judge finds no reason to reject the stipulation in the interest of justice).

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