Gonzalez & Waddington – Attorneys at Law

Borderline Personality Disorder & False Accusations in Military Sexual Assault Cases

Rulings on Evidence.

Rulings on Evidence. This rule imposes significant responsibility on counsel to raise and preserve evidentiary questions for review.
Rule 103. Ruling on Evidence

Effect of Erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless the ruling materially prejudices a substantial right of a party, and

Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record; stating the specific ground of objection, if the specific ground was not apparent from the context;

Offer of Proof. In case the ruling is one excluding evidence, the substance of the
evidence was made known to the military judge by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. The standard provided in this subdivision does not apply to errors involving requirements imposed by the Constitution of the United Sates as applied to members of the armed forces except insofar as the error arises under these rules and this subdivision provides a standard that is more advantageous to the accused than the constitutional standard

Plain error. Nothing in these rules precludes taking notice of plain errors that materially
prejudice substantial rights although they were not brought to the attention of the military judge.

Objections to evidence. Rule 103(a)(1): Failure to make specific (correct),
timely (meaning at the earliest possible time) objection at trial waives issue for
appeal, absent a “plain error;”

Preserving Issues. Counsel is not required to cite evidentiary rules by number
in order to adequately preserve objections for later appellate review. So long as
counsel makes sufficient arguments to make the issue known to the military
judge, the issue will be preserved. United States v. Datz, 61 M.J. 37 (2005).
While MRE 103 does not require the moving party to present every argument in
support of an objection, it does require an argument sufficient to make the military
judge aware of the specific ground for objection. MRE 103 should be applied in
a practical rather than a formulaic manner. United States v. Reynoso, 66 M.J.
208 (2008).

Where the witness’ answer is objectionable, but it has been heard by the panel,
the opponent must seek a curative instruction (to disregard the testimony) or a
mistrial. Declaration of a mistrial lies within the sound discretion of the judge,
United States v. McGeeney, 41 M.J. 544 (N-M. Ct. Crim. App. 1994), and should
only be granted where circumstances demonstrate the necessity to prevent a
manifest injustice to the accused. United States v. Dancy, 38 M.J. 1 (C.M.A.

Offer of Proof. Rule 103(a)(2): If the military judge sustains an objection to the
tender of evidence, the proponent generally must make an offer to preserve the
issue for appeal. The offer should include the substance of the proffered
evidence, the affected issue, and how the issue is affected by the judge’s ruling.
United States v. Means, 24 M.J. 160 (C.M.A. 1987) and United States v. Viola,
26 M.J. 822 (A.C.M.R. 1988).

Repeating Objections. Counsel does not have to repeat objections during the trial if
they first obtain an unconditional, unfavorable ruling from the military judge in out of-
court session. United States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App.
1995). However, a preliminary, tentative ruling may require a subsequent
objection to preserve the issue for appeal. United States v. Jones, 43 M.J. 708
(A.F. Ct. Crim. App. 1995). Rule 103 also applies at sentencing to the admission
of documents from the accused’s personnel records. See United States v.
Kahmann, 59 M.J. 309 (2004) (holding that where defense counsel failed to
object, the military judge did not commit plain error in admitting a summary
court-martial conviction record that did not indicate on its face whether the
accused had received Booker counseling or whether a mandatory review of the
conviction had taken place under Art. 64).

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