CORE CRIMINAL LAW SUBJECTS: Evidence: Waiver

2020 (October Term)

United States v. Bavender, 80 M.J. 433 (arguments for suppression of evidence under MRE 311 [evidence obtained from unlaw searches and seizures] that are not made at trial are waived; further, the defense in each case must make a particularized objection to the admission of evidence to give the government the opportunity to present relevant evidence on the objection, otherwise the issue is waived and may not be raised on appeal).

(in this case, appellant waived the portion of his argument that criminal investigative agents knowingly or recklessly misrepresented his statements in an affidavit used to obtain a search authorization from a military magistrate where at trial, the defense never argued that the affidavit contained intentionally false information or that the affidavit used the term child pornography in reckless disregard for the truth and where this theory was not inherent in the defense argument). 

(in this case, the defense did not waive the argument that criminal investigative agents intentionally or recklessly omitted material facts from the search authorization affidavit where in both its written motion to suppress and orally at trial, the defense clearly argued that there were material omissions in the affidavit). 

2019 (October Term)

United States v. Blackburn, 80 M.J. 205 (an appellate court reviews de novo whether an accused has waived an issue). 

(suppression arguments not raised at trial are waived under MRE 311(d)(2)(A), and preservation requires a particularized objection; this requirement ensures the government has the opportunity to present relevant evidence and develop a full record for review on appeal). 

(when constitutional rights are at issue, an appellate court applies a presumption against finding waiver).

(in this case, the accused preserved a particularized objection to the good faith exception to the exclusionary rule by alleging at trial that the government provided false information to the magistrate, even though he did not use the talismanic words “false” or “reckless disregard of the truth”; furthermore, the defense’s arguments as a whole demonstrated an accusation of at least recklessness in the search authorization request, which adequately preserved the issue on appeal, and moreover, the military judge addressed this point directly, finding no evidence that the magistrate was provided false information or recklessly disregarded the truth). 

2018 (October Term)

United States v. Perkins, 78 M.J. 381 (under MRE 311(d)(2)(A), arguments for suppression of evidence under MRE 311 that are not made at trial are waived).

(the accused must make a particularized objection to the admission of evidence, otherwise the issue is waived and may not be raised on appeal; a particularized objection is necessary so that the government has the opportunity to present relevant evidence that might be reviewed on appeal). 

(in this case, at trial, appellant argued only that the search authorization was unconstitutionally vague, was lacking in probable cause, and failed to meet the particularity requirement of the Fourth Amendment; because Appellant did not raise the argument that the magistrate had failed to act in a neutral and detached manner at trial, he cannot raise it for the first time on appeal and the argument is waived). 

United States v. Smith, 78 M.J. 325 (MRE 311(d)(2)(A) unambiguously establishes that failure to object is waiver, and is not a rule that uses the term waiver but actually means forfeiture).

(where an appellant moves to suppress evidence under MRE 311 but fails to articulate a possible ground upon which to suppress the evidence, this failure constitutes waiver; failure to object under MRE 311 constitutes waiver, not forfeiture). 

(in this case, where appellant on appeal challenged the search of his phone on a ground not raised at trial, he waived  the issue). 

2017 (October Term)

United States v. Jones, 78 M.J. 37 (when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error). 

(waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right). 

(an appellate court applies a presumption against finding a waiver of constitutional rights).

(a waiver of a constitutional right is effective if it clearly established that there was an intentional relinquishment of a known right). 

(in certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client). 

(in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error).

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). 

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). 

2014(September Term)

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). 

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, “objection on foundation,” 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 counsel’s 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 counsel’s 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 party’s 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 defense’s untimely evidentiary motion to suppress the results of appellant’s BAC test despite the defense counsel’s 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 appellant’s signing the consent form, where the prosecution did nothing to contribute to the defense’s 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 counsel’s argument addressed the issue of adoptive admissions generally and specifically raised concerns about whether the accused’s 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 counsel’s 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 counsel’s relevance objection to testimony about appellant’s 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 counsel’s 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 counsel’s timely objection to trial counsel’s argument was sufficient to preserve the constitutional and statutory issues arising from trial counsel’s use of evidence of appellant’s 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 “no objection” 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. 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 government’s 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 judge’s 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).