CORE CRIMINAL LAW SUBJECTS
CORE CRIMINAL LAW SUBJECTS: Evidence: Waiver
2017 (October Term)
United States v. Robinson, 77 M.J. 303 (MRE 311(d)(2)(A) provides that when evidence has been disclosed prior to arraignment, the defense must make any motion to suppress or objection under this rule prior to submission of a plea, and in the absence of such a motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown; furthermore under this rule, failure to so move or object constitutes a waiver of the motion or objection; this rule unambiguously establishes that failure to object is waiver, and it is not a rule that uses the term waiver but actually means forfeiture).(in this case, any objection that investigators had exceeded the scope of appellant’s consent to search his cell phone was waived and could not be raised as an issue on appeal, where at no time during appellant’s litigation of his motion to suppress at trial did he raise the issue of the scope of the search, but rather premised the motion on whether appellant’s consent was involuntary and whether the investigator’s request for the password violated MRE 304 and Article 31, UCMJ).
2016 (October Term)
United States v. Ahern, 76 M.J. 194 (deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal).
(whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right).
(whether a particular right is waivable; whether an accused must participate personally in the waiver; whether certain procedures are required for waiver; and whether an accused’s choice must be particularly informed or voluntary, all depend on the right at stake).
(MRE 304(f)(1) plainly states that claims arising under MRE 304(a)(2) are waived absent an objection; this is not a case where the rule uses the word “waiver” but actually means “forfeiture;” MRE 304(f)(1) does not mention plain error review, and instead unambiguously provides that any claim arising under MRE 304 is waived absent an objection).
(under the clear dictates of MRE 304(f)(1), at a GCM for the offense of aggravated sexual assault of a child, appellant’s failure to object to the admission of the content of telephone calls from his wife in which he failed to deny allegations of wrongdoing waived his right to object to their admission on appeal; moreover, under the ordinary rules of waiver, appellant’s affirmative statements that he had no objection to their admission also operated to extinguish his right to complain about their admission on appeal; appellant not only waived his right to object to the admission of the phone calls but to their use during the prosecution’s argument on findings when the prosecution argued that appellant’s silence in response to his wife’s accusations indicated his guilt, and appellant still raised no objection).
United States v. Piren, 74 M.J. 24 (when an accused takes the stand, the privilege against self-incrimination is waived).
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).
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).
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).
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
make a timely objection or motion to strike in the record, stating the
ground of the objection, if the specific ground was not apparent from
context; the rule also provides that nothing in this rule precludes
notice of plain errors that materially prejudice substantial rights
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
(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
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).
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).
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).
States v. Anderson, 51 MJ 145 (expert who had specialized
training and experience which would assist the trier of fact clearly
as an expert; however, where defense counsel voir dired the
and stated that the defense has no objection to governmentís offer of
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).
States v. Eggen, 51 MJ 159 (failure to object to testimony
of expert on the basis that expert had exceeded the area of his
waived that issue for appeal).