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).
(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).
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
(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
(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
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).