"The future ain't what it used to be": new developments in evidence for the 2005 term of court

Relevance is at the conceptual core of the Federal Rules of Evidence (FRE) and the Military Rules of Evidence (MRE). As expressed in Rules 401, (2) 402, (3) and 403, (4) evidence that is logically relevant (5) is admissible at trial, unless other rules prohibit its admission (6) or its probative value is substantially outweighed by the danger of unfair prejudice or other damage to the fact-finding process. (7) What seems simple on its face, however, is often complicated by caselaw interpretations that expand or contract the limits of relevance according to the philosophical preferences of appellate judges.

The strongest evidentiary trend in the 2005 term of court was the Court of Appeals for the Armed Forces' (CAAF) struggle to establish the boundaries of logical and legal relevance in trials by court-martial. The CAAF wrestled with issues involving the basic definition of logical relevance, (8) the limits of legal relevance, (9) and whether specific evidentiary prohibitions should prevent logically relevant evidence from being admitted at trial. (10) The CAAF appears to be ideologically fractured and inconsistent on issues of relevance, making it very difficult for practitioners and military judges to apply the plain language of the MRE in making admissibility determinations.

Relevance, however, was not the only evidentiary subject tackled by the CAAF and the service appellate courts during the 2005 term of court. This article will discuss and analyze significant evidentiary military appellate cases from the CAAF and the service appellate courts, proceeding sequentially through other military rules of evidence. This year's term addressed cases concerning the proper preservation of objections under MRE 103, (11) the independent source rule for the corroboration of a confession under MRE 304(g), (12) logical and legal relevance under MREs 401 (13) and 403, (14) uncharged misconduct under MRE 404(b), (15) sexual propensity evidence under MRE 413, (16) the joint-participant exception to the marital communications privilege of MRE 504, (17) impeachment under MRE 613, (18) expert testimony under MREs 702 (19) and 704, (20) adoptive admissions and MRE 801(d)(2)(B), (21) the public records exception to the hearsay rule of MRE 803(8), (22) and statements against interest under MRE 804. (23)

Cases from the 2005 Term of Court

Rule 103: Preserving Objections for Appellate Review

Military Rule of Evidence 103 requires counsel to make objections in order to preserve evidentiary issues for later appellate review. The objections must be timely and specific, and counsel must be prepared to preserve objections through offers of proof. (24) In the absence of plain error, evidentiary issues are forfeited if counsel fail to comply with the requirements of MRE 103. (25) In United States v. Datz, (26) the CAAF addressed MRE 103's requirements to preserve evidentiary issues for later appellate review.

The appellant in Datz was convicted of raping a female member of his crew after unlawfully entering her civilian quarters. (27) He conceded at trial that he and the alleged victim had participated in sexual intercourse, but he claimed it was consensual. (28)

The government's case consisted of testimony from the alleged victim and a police investigator, Special Agent (SA) Van Arsdale, who had interrogated the appellant. (29) Special Agent Van Arsdale testified that Datz had nodded affirmatively in response to the agent's statement that Datz knew he did not have consent to engage in sexual intercourse with the victim. (30) The government introduced evidence of the nod as an adoptive admission by the appellant. (31)

Special Agent Van Arsdale, however, was not the most reliable of witnesses. Testifying from memory, he could not recall the exact wording of the questions he had posed to the appellant. Instead, he testified about questions he "would have" asked the appellant. (32) As for the critical question in the case--the one that led to the appellant's alleged adoptive admission--SA Arsdale had this to say: "Again, it was something to the effect--this whole line of questioning was around the same time, and it would have been, 'She didn't in fact agree to have sex with you, did she?' or something to that effect." (33) In other words, SA Van Arsdale had observed the appellant nod affirmatively in response to a compound and ambiguous question. (34)

Defense counsel objected on grounds of relevance and prejudice and in argument to the military judge during an Article 39(a) session, questioned whether the appellant had actually manifested his adoption of or belief in the statements or was merely nodding in anger or frustration. (35) Defense counsel, however, never cited MRE 801(d), the rule governing adoptive admissions, (36) to the military judge. The military judge admitted the evidence and stated that defense counsel's arguments would go to the weight but not the admissibility of the statements. (37)

On appeal, the CAAF addressed the issue of whether defense counsel waived the adoptive admissions issue by failing to properly preserve the objection under MRE 103. (38) Adopting a common-sense approach, the CAAF held that defense counsel had adequately preserved the adoptive admissions issue for appeal. (39) Military Rule of Evidence 103 requires an accused to make a timely objection, stating the specific grounds for the objection if not apparent from the context. (40) There is no requirement to cite a particular rule by number. (41) In this case, appellant's defense counsel initially objected on grounds of relevance and prejudice, but presented sufficient argument on the adoptive admissions issue to make known to the military judge the basis for his objection. (42) The CAAF rejected the government's argument on appeal--the appellant would be required to raise every possible argument in support of an objection to avoid forfeiting the issue--stating, "[i]n 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." (43)