CORE CRIMINAL LAW SUBJECTS: Evidence: Waiver


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).

2010 (September Term)

United States v. Sweeney, 70 M.J. 296 (whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; to determine whether a failure to object was waiver or mere forfeiture, an appellate court looks to the state of the law at the time of trial, and it will not find waiver where subsequent case law opened the door for a colorable assertion of the right to confrontation where it was not previously available). 

(to challenge evidence at trial, an accused must state the specific ground of objection, if the specific ground was not apparent from the context; in this case, appellant’s failure to object at trial to the admission of a drug testing report on Confrontation Clause grounds was forfeited rather than waived because in light of the case law in Magyari (US v. Magyari, 63 MJ 123 (CAAF 2006), he had no colorable objection and therefore did not voluntarily relinquish a known right of confrontation; because appellant’s urinalysis, like the urinalysis testing in Magyari, was not initiated at the outset by law enforcement, any objection by appellant would have been overruled under Magyari - as evidenced by the continued use of Magyari in the Courts of Criminal Appeals as the basis for finding no error in the admission of such tests; failing to make what would have been a meritless objection under Magyari cannot possibly signal either a strategic trial decision or a voluntary relinquishment of a known right in the context of the military justice system). 

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). 

 
(the mere utterance, ďobjection on foundation,Ē did not preserve any issue under MRE 1006 regarding the chart itself or any hearsay issue regarding the underlying evidence upon which the chart was based; this is the very reason for the specificity requirement under MRE 103(a)(1)). 

 
(defense counselís objection on foundational grounds to a chart that an expert witness helped formulate to demonstrate the differences in rates for basic allowance for housing and cost of living allowance for different locations did not preserve any issue on appeal regarding the chart itself or any hearsay issue regarding the underlying evidence upon which the chart was based, especially where defense counselís voir dire of the witness appeared designed to suggest that the witness was not in a position to know whether the figures he relied on were accurate). 

  

United States v. Toy, 65 M.J. 405 (MRE 103(a)(1) requires a party to make a timely objection stating the specific ground of objection, if the specific ground was not apparent from the context; the rule does not require a party to advance every literal argument in support of his objection; however, a party is required to provide sufficient argument to make known to the military judge the basis of that partyís objection and, where necessary to support an informed ruling, the theory behind the objection). 

 

2007

 

United States v. Jameson, 65 M.J. 160 (MRE 311(d)(2)(A) requires that motions to suppress evidence be made by the defense prior to submission of a plea; the general rule is that a failure to make the motion prior to the plea constitutes a waiver of the motion or objection; the only exception is if good cause is shown by the moving party; no good cause exists when the defense knew or could have known about the evidence in question before the deadline).

 

(the military judge did not abuse his discretion in determining that there was no good cause under MRE 311(d)(2) to permit the defenseís untimely evidentiary motion to suppress the results of appellantís BAC test despite the defense counselís allegations that he made two unsuccessful attempts to contact and interview the investigators who presented the consent-to-draw-blood form to appellant in the hospital, where neither the charge, nor the BAC evidence at issue, was a surprise, where the defense counsel knew about the evidence at issue and also knew the general circumstances surrounding appellantís signing the consent form, where the prosecution did nothing to contribute to the defenseís decision not to file a timely motion to suppress, and where the defense counsel did not request assistance from either the military judge or government counsel in producing either investigator for an interview).


2005

 

United States v. Datz, 61 M.J. 37 (under MRE 103, 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 the objection, if the specific ground was not apparent from the context; the rule also provides that nothing in this rule precludes taking notice of plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge).
 
(in the present context, we believe the defense counsel met his burden under MRE 103 and preserved an objection to the admission of alleged adoptive
admissions by the accused, despite his failure to cite to the specific evidentiary rule governing admission of adoptive admissions, MRE 801(d)(2)(b); here, the defense counselís argument addressed the issue of adoptive admissions generally and specifically raised concerns about whether the accusedís nodding during his interrogation adopted the admissions posed by his interrogator).
 
(in objecting to the admission of evidence, a party is not necessarily required to refer to a specific rule by citation, but the party is required to provide sufficient argument to make known to the military judge the basis of his objection and, where necessary to support an informed ruling, the theory behind the objection). 
 
(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, if the specific ground was not apparent from the context; here counselís objection to the adoptive
admissions was brought to the attention of the military judge; to require counsel for either side to identify all available arguments in support of his or her objection is unnecessary in a context where the military judge is presumed to know the law and follow it; in the heat of trial, where counsel face numerous tactical decisions and operate under time pressure, we do not require such elaboration to preserve error on appeal). 

 

2002

United States v. Gilley, 56 MJ 113 (in the absence of objection, issues of admissibility of evidence are waived, and appellate court will grant relief only if the admission of such evidence constitutes plain error).

United States v. Alameda, 57 MJ 190 (where military judge summarily overruled defense counselís relevance objection to testimony about appellantís silence at the time of his apprehension, without allowing either side to articulate reasons for or against admitting the testimony, and without articulating any rationale for admitting the evidence, defense counselís objection challenging the relevance the testimony was sufficient to preserve the issue of the admissibility of that testimony in light of Mil.R.Evid. 304(h)(3)).

(defense counselís timely objection to trial counselís argument was sufficient to preserve the constitutional and statutory issues arising from trial counselís use of evidence of appellantís silence at the time of his apprehension as substantive proof of guilt).

2001

United States v. Green, 55 MJ 76 (if a party fails to challenge the admissibility of expert testimony, the issue may be treated as waived, absent plain error).

2000

United States v. Ayers, 54 MJ 85 (claim that a general regulation is not authentic or is not what it purports to be, is an evidentiary objection, based on lack of proper authentication, and is waived if not timely made).

(where defense counsel announced ďno objectionĒ to military judge taking judicial notice of a general regulation, any objections to judicial notice of the regulation or the lack of authentication were waived).

United States v. Ruiz, 54 MJ 138 (objections to questions asked on cross-examination must be made at the time that they are asked).

1999

United States v. Halford
, 50 MJ 402 (failure to object under MRE 403 constitutes waiver in the absence of plain error).

United States v. Anderson, 51 MJ 145 (expert who had specialized training and experience which would assist the trier of fact clearly qualified as an expert; however, where defense counsel voir dired the witness and stated that the defense has no objection to governmentís offer of the witness as an expert in child sexual abuse, any claim that the witness was not qualified was waived).

United States v. Anderson
, 51 MJ 145 (where defense does not object to certain statements included in the military judgeís instruction permitting those statements to be considered for the truth of the matter stated therein, appellant waived the objection).

United States v. Eggen, 51 MJ 159 (failure to object to testimony of expert on the basis that expert had exceeded the area of his expertise waived that issue for appeal).


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