New developments: crop circles in the field of evidence

Introduction

In the darkness of the night, on a schedule understood by no man and with no one watching, giant geometric formations appear throughout the crop fields of the world. (2) They are mysterious, alluring, and for some, they call into question our solitary existence within the universe. (3) Others see them as the acts and pranks of a few peculiar individuals. Movies have been made, (4) books have been written, and people have wondered how to interpret the sudden appearance of the unexplained in their daily lives.

Some trial lawyers in the military have viewed the recent evidentiary decisions of the Court of Appeals for the Armed Forces (CAAF) with the same sense of questioning wonder others reserve for the appearance of crop circles. Others have attempted to see behind the decisions, looking for the alien in the pantry. (5) We need only turn our faces on high toward the decisions themselves to properly interpret the mystical signs that appeared in our evidentiary field over the last year. The contortions of the rule of completeness, the admissibility of appropriate rebuttal evidence, and an understanding of the impact of privileges are all present in the circles, squares, and geometric lines of the crop circles found in the fields of evidence.

While some counsel feel bewildered and confused by the plethora and breadth of the "signs" that have appeared recently, there is no reason to feel that way. The decisions of the CAAF are not mystic symbols from above, but rather constitute a careful, reasoned, and fair application of the driving policy issues and concerns that the military rules of evidence were drafted to address. This article analyzes those issues and comments on the underlying reasons behind the court's decisions, while offering practical advice to the counsel and military judges who must apply these decisions throughout the coming year.

To that end, this article addresses each development of evidentiary law sequentially as they appear in the Military Rules of Evidence (MRE). Subjects include: (1) applying the rule of completeness under MRE 106 (6) and MRE 304; (7) (2) determining when evidence is relevant under MRE 401 (8) and MRE 402; (9) (3) the proper application of the attorney-client privilege, (10) the spousal privilege, (11) and the priest-penitent privilege; (12) (4) the requirements for the medical hearsay exception under MRE 803(4); (13) and (5) the intersection of the business records exception (14) and the urinalysis program. The ultimate goal is to remove the mystery behind the crop circles, allowing the farmers of the fields of justice to get on with planting, tending, and harvesting their crops.

Recent Developments in Evidence

The Rule of Completeness

The CAAF has wrestled with the dilemma presented by the presence of multiple statements made by the accused on more than one occasion, (15) particularly when investigating agent request that suspects reduce earlier oral confessions to writing. As often happens in such instances, the accused either remembers or inserts information that was not present in the oral confession. This sets the stage for trial counsel to argue that the written confession contains inadmissible exculpatory hearsay, and for the defense counsel to respond that such evidence is admissible under MRE 106 and MRE 304(h)(2). The CAAF has addressed the interplay between MRE 106 and MRE 304(h)(2) in a series of cases including United States v. Gold wire, (16) United State v. Rodriguez, (17) and United States v. Gilbride. (18) Taken together, these cases create a template that counsel can rely on when arguing the admissibility of subsequent written or oral statements. Understanding the contours of this template begins with a review of the CAAF's decision in Goldwire last year.

In Goldwire (19) the CAAF addressed the intersection of MRE 106, (20) Federal Rule of Evidence (FRE) 106, (21) the common law rule of completeness, (22) MRE 304 (h)(2), (23) and their interactions with the admissibility of hearsay statements at trial. As noted last year, the court's reasoning was convoluted and difficult to understand. Some members of the court indicated a willingness to accept and apply the common law rule of completeness to the military rule of completeness, while others were more inclined to parse the difference between the written rule of completeness vis-a-vis written or recorded statements, and the common law rule of completeness for oral statements. The court discussed the differences between these doctrines at length, but ultimately decided the case based upon MRE 304(h)(2). The court's decision to apply MRE 304(h)(2) created a bright-line rule that is much easier to understand and apply from a trial practitioner's perspective. (24)

The CAAF continued to develop military jurisprudence for the rule of completeness this year, clarifying its interpretation of these rules in both Rodriguez and Gilbride. In United States v. Rodriguez, (25) the CAAF considered whether the military rule of completeness applied to a series of statements made over several days. The appellant argued that under the rule of completeness, once the trial court admitted the first statement, it should have admitted a series of statements he made over several days. The CAAF disagreed. (26) The court began its opinion by discussing the facts in chronological order. On 3 January 1998, someone strangled the appellant's wife. On 5 January 1998, the appellant called his mother-in-law from a pay phone. (27) This phone conversation became the first in a series of seven statements the appellant made to other individuals. He told his mother-in-law that burglars had abducted him and his wife. His mother-in-law stated that he appeared excited and disoriented. He also told his mother-in-law that someone had hit him on the head, and that the last time he saw his wife, she was bound and gagged in the car. After hanging up the phone with his mother-in-law, the appellant dialed 911. The call to the 911 operator became the appellant's second statement. He told the 911 operator that he was disoriented, that a burglar had attacked the appellant and his wife and abducted them, and that he had only recently been able to escape. The 911 operator dispatched members of the Honolulu Police Department to the pay phone where Rodriguez was located. (28)