CORE CRIMINAL LAW SUBJECTS: Evidence: Generally

2020 (October Term)

United States v. Long, 81 M.J. 362 (evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this familiar standard of review gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts; in applying this test for legal sufficiency, reviewing courts must remember that findings may be based on direct or circumstantial evidence; and circumstantial evidence is intrinsically no different from testimonial evidence; with both, the jury must use its experience with people and events in weighing the probabilities; if the jury is convinced beyond a reasonable doubt, a reviewing court can require no more).

United States v. Henry, 81 M.J. 91 (MRE 602 requires that a witness must have personal knowledge in order to testify). 

United States v. Upshaw, 81 M.J. 71 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion). 

United States v. Ozbirn, 81 M.J. 38 (the question of what a person specifically intended at a particular time is a question of what thoughts the person actually had in his or her head at the time; because actual mind reading is impossible, a person’s specific intent generally can be determined only by the person’s own admissions or by drawing inferences from the person’s statements and actions and from the context and circumstances). 

(inferences about specific intent depend on the totality of the circumstances). 

United States v. Ayala, 81 M.J. 25 (the proponent of evidence has the burden of demonstrating that the evidence is admissible).

2019 (October Term)

United States v. Reyes, 80 M.J. 218 (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).

United States v. Carter, 79 M.J. 478 (in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible).   

United States v. Finch, 79 M.J. 389 (the proponent of evidence has the burden of demonstrating that the evidence is admissible). 

(where the language of a military rule of evidence is identical to a corresponding federal rule, the interpretation of the terms in the rule by other federal courts of appeals is instructive).

(where an evidentiary issue is complex and/or merits a written filing by a party, it is appropriate for a military judge to place on the record his or her reasoning behind the resolution of that issue). 

(where there is an evidentiary objection, the proper course of action for a military judge is to review the proffered evidence before making an admissibility determination).

2018 (October Term)

United States v. Hyppolite, 79 M.J. 161 (evidence may be admissible for some purposes but not others). 

United States v. Lewis, 78 M.J. 447 (a military judge’s decision to exclude evidence is reviewed for an abuse of discretion). 

(a military judge is allowed to draw reasonable inferences from the evidence presented). 

United States v. Hutchins, 78 M.J. 437 (a military judge may admit otherwise admissible evidence even though it was previously introduced on charges of which an accused has been acquitted as long as the evidence is relevant and the probative value of the proffered evidence is not outweighed by its prejudicial effect). 

(an acquittal in a criminal case does not preclude the government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof such as in an MRE 404(b) context; the fact of the prior acquittal may diminish the probative value of the evidence, however, and should be considered by the military judge when conducting the MRE 403 analysis).

(because issue preclusion was inapplicable in this case, the military judge properly examined whether the evidence related to the acquitted offenses was admissible at trial under MRE 403 and MRE 404(b); the proper way to decide admissibility is to factor in the prior acquittals as part of the balancing test under MRE 403).

United States v. Kohlbek, 78 M.J. 326 (a rule permitting a per se ban on unreliable evidence in the military justice system is neither an arbitrary nor a disproportionate restriction on an accused’s Sixth Amendment right to present evidence in his defense). 

United States v. King, 78 M.J. 218 (the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented). 

(the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private).

United States v. Criswell, 78 M.J. 136 (eyewitness identifications are problematic in any criminal justice system; on one hand, eyewitness identifications are often the most compelling evidence linking a suspect to a crime; but on the other hand, experience has shown that eyewitness identifications are not always accurate; eyewitnesses can be mistaken because of anxiety, surprise, lack of focus, or other factors at the time of the crime). 

(MRE 321 is a complex provision that addresses testimony about out-of-court eyewitness identifications (such as those which might have occurred in a police station before trial) and in-court eyewitness identifications (such as those in which a witness points to the accused sitting at the defense table); MRE 321(a) states a rule that generally makes relevant testimony concerning eyewitness identifications admissible; but MRE 321(b) creates an exception to the rule, providing that testimony about eyewitness identifications is inadmissible if the identifications: (1) were the result of an unlawful lineup or other unlawful identification process; or (2) their exclusion is required by the Due Process Clause of the Fifth Amendment to the Constitution of the United States as applied to members of the Armed Forces; MRE 321(c)(1) provides that a lineup or other identification process is unlawful if the process is so suggestive as to create a substantial likelihood of misidentification). 

(under MRE 321, the first question to ask is whether the identification process at issue was unnecessarily suggestive; assuming that it was, the second question is whether the process was conducive to a likelihood of misidentification; in answering the second question, five factors are considered: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the perpetrator; (4) the witness’s demonstrated level of certainty during the confrontation; and (5) the elapsed time between the criminal act and the confrontation; these factors are then weighed against the corrupting effect of the suggestive identification itself; the purpose of the weighing is to determine whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive).

(under MRE 321(d)(6)(B)(i), when an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; MRE 321(d)(6)(B)(ii) then states that when the military judge determines that an identification is the result of an unreliable identification, 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). 

(even if reasonable minds could differ about the application of the facts to the law, a military judge does not abuse his discretion in deciding to suppress an in-court identification on the ground that the in-court identification would be significantly impacted by a prior unreliable identification).

(without producing the photographs used in a suggestive prior identification, the government in some cases will have difficulty proving by clear and convincing evidence that the later identification is not the result of the inadmissible identification as required by M.R.E. 321(d)(6)(B)(ii); however, the government may be able to meet this burden by other means). 

(while a military judge may choose to accord greater weight to statements made by a witness before the witness has seen a suggestive photograph, there is no rule prohibiting the military judge from considering subsequent descriptions of the accused in applying MRE 321(d)(6)(B)(ii)).

(in this case, a military judge’s omission of an express discussion of weighing the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors against the suggestiveness of the initial identification did not indicate that the military judge had an incorrect view of the law where (1) appellant did not contend that the military judge misunderstood this aspect of the MRE 321 analysis, (2) in the absence of clear evidence to the contrary, it is presumed that military judges know the law and follow it, and (3) the military judge emphasized that he had considered all the surrounding circumstances in determining that the in-court identification was reliable). 

(in this case, viewing the evidence in the light most favorable to the government, the military judge’s conclusion that the victim’s in-court identification of appellant was reliable, even though a pretrial identification was unnecessarily suggestive, was not outside the range of choices reasonably arising from the applicable facts and the law where (1) the victim was confronted twice by her assailant, was in his presence for a significant amount of time, and could see her assailant’s face clearly, (2) the victim was extremely attentive to her assailant’s features during the time that she was in his presence, (3) the victim gave a very detailed description of her assailant, a description that was corroborated by another witness at the time of the assault, (4) the victim’s identification of her assailant when shown a single photo of appellant prior to trial was immediate and certain, and (5) the length of time between the crime and the confrontation with the single photo was less than 24 hours, a very short amount of time leaving little opportunity for the victim to forget whatever she remembered about her assailant and therefore be persuaded by seeing only a single photo, and where the military judge considered all the surrounding circumstances, including environmental factors and the discrepancies raised by the defense in cross-examination; accordingly, the military judge did not abuse his discretion in denying appellant’s motion to suppress the victim’s in-court identification).

(the inquiry under MRE 321 is not limited to the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors). 

2017 (October Term)

United States v. Eppes, 77 M.J. 339 (the Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation; a search conducted pursuant to a warrant or search authorization is presumptively reasonable; when evidence is unlawfully obtained, however, an accused may timely move to suppress it and, pursuant to the exclusionary rule, a military judge may exclude it).

2016 (October Term)

United States v. Claxton, 76 M.J. 356 (the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution).

(in military practice, where an appellant demonstrates that the government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the government can show that nondisclosure was harmless beyond a reasonable doubt; failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial). 

United States v. Ahern, 76 M.J. 194 (it is well established that principles of statutory construction are used in construing the Military Rules of Evidence).

(MRE 105 places primary if not full responsibility upon counsel for objecting to or limiting evidence). 

United States v. Fetrow, 76 M.J. 181 (the rules of statutory construction, although generally applied to construe statutes, are helpful in analyzing evidentiary rules as well as other provisions of the MCM). 

(the plain language of an evidentiary rule should be read to give effect to every clause and word; words used in the rule should be given their common and approved usage, and the rule should be construed so as to avoid rendering any language superfluous or redundant).

2015 (September Term)

United States v. Bess, 75 M.J. 70 (under RCM 921(b), court members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced; the military judge may, in the exercise of discretion, grant such request). 

(in this case, the military judge’s giving  muster reports to the court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses). 

(admitting evidence without allowing the parties to dispute the reliability of that evidence before the factfinder cannot be reconciled with Fifth Amendment due process, or the protections of the Sixth Amendment). 

2014 (September Term)

United States v. Simmermacher, 74 M.J. 196 (a constitutional duty to preserve evidence exists if the following conditions are met: the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; in addition, an appellant must prove bad faith by the government to establish a violation of the due process clause when potentially useful evidence has not been preserved). 

(RCM 703(f)(2) provides that notwithstanding the rule that each party is entitled to the production of evidence that is relevant and necessary, a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process; however, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party).

(constitutional due process standards are not a part of an RCM 703(f)(2) analysis for unavailable evidence; while the due process standards are still applicable to a constitutional due process inquiry for lost or destroyed evidence, RCM 703(f)(2) is an additional protection the President granted to servicemembers whose lost or destroyed evidence fall within the rule’s criteria). 

(if a continuance or other relief cannot produce the missing evidence, the remaining remedy for a violation of RCM 703(f)(2) is abatement of the proceedings; to the extent that the language in US v. Manuel, 43 MJ 282 (CAAF 1995) and US v. Madigan, 63 MJ 118 (CAAF 2006), are inconsistent with this holding, that language is overruled).

(under RCM 703(f)(2), a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process unless three criteria are met: (1) the lost or destroyed evidence was of such central importance that it was essential to a fair trial; (2) there was no adequate substitute for the lost or destroyed evidence; and (3) the loss or destruction of the evidence was not the fault of nor could have it been prevented by the requesting party). 

United States v. Norman, 74 M.J. 144 (a factfinder may permissibly conclude that the same piece of evidence proves more than one element of a charged crime, so long as this conclusion is reached independently with respect to each element). 

United States v. Olson, 74 M.J. 132 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

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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