22 November 2009

MRE 803(5) - Past Recollection Recorded

1. Rule 803: The following [is] not excluded by the hearsay rule, even though the declarant is available... (5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.

2. Counsel’s Objective. To place into evidence contents of a writing as a substitute for the dimmed memory of a witness. When a witness cannot recall a fact even after an attempt to revive her recollection (see Rule 612), use this rule when the witness made a contemporaneous record of the matter she cannot now recall on the stand.

3. Key Points.

a. Why it’s hearsay. You are offering an out-of-court statement (the contents of the contemporaneous writing) as evidence for the truth of its contents.
b. Why it’s admissible. It carries circumstantial guarantees of trustworthiness because it was made or adopted at the time of or shortly after the incident (so the witness’s memory was freshest, usually had less opportunity to contemplate later litigation) and the author or adoptee is on the stand.
c. You’ll need to establish:
(1) That your witness “once had knowledge” of the matter at issue.
(2) That she cannot now “testify fully and accurately” from memory. She need not have lost total memory, she just has to be unable to recall totally.
(3) She made or adopted the writing “when the matter was fresh in the witness’s memory.”
(4) That writing “reflect[s] that knowledge accurately” (sometimes called the “vouching” provision).
d. As the proponent, follow these steps:
(1) Have the witness try to testify from her present memory. Ask the question you want answered.
(2) Try to refresh her memory according to Rule 612. Ask whether there is something that might refresh her memory.
(3) Give the witness that document, let her read it and then withdraw that document.
(4) When the witness still cannot testify from her memory, ask the witness whether the writing already marked was made at or near the time of the incident. Ask her whether it was accurate when it was made. Ask the court for permission to have the witness read from the marked document as her past recollection recorded.
(5) Have the witness read the information into evidence.
e. When you are the opposing party, be aware:
(1) That the proponent can NOT introduce the document into evidence. Though the witness may read from the document, the evidence is testimonial -- the oral statement of the witness -- not documentary. Oppose any effort to introduce the document into evidence because it would give it undue weight, and give your opposition the chance to have written evidence on the record as a substitute for what should be oral testimony.
(2) The adverse party (the one not offering the testimony) may introduce the document into evidence. Therefore, inspect the document and, if having the entire document into evidence would help your case, use your right under the rule to move it into evidence. Rules 612 and 803(5).
(3) Cross-examine with the same skepticism you apply to other evidence. The document need not be formal -- it can be a scrap of paper on which the witness scribbled a license plate number -- but you can raise skepticism about its authenticity, depending on the witness’s veracity.

19 November 2009

Fort Hood Review

Defense Secretary Robert Gates is putting former U.S. Army Secretary Togo West and former Navy chief Vernon Clark in charge of a broad Pentagon review of the circumstances surrounding the Fort Hood shootings.

Gates said Thursday that the 45-day review will look into gaps in how the military identifies service members who might be a threat to others. It also will look at personnel and medical programs, and at how well U.S. bases are able to respond to mass casualty incidents. For a full account see MSNBC Story.

It will be interesting to see what sort of mandatory training comes out of this study.

17 November 2009

Why have Evidence Law?

1.1 Why have Evidence Law?

A. For the most part, evidence law puts in place a set of restraints that courts enforce against counsel in an attempt to manage the various risks and opportunities that the trial process presents in an adversary setting. There are many reasons for having evidence law, but five principle reasons stand out.

1. The first is mistrust of panels. This may seem strange since we place our faith in the panel system. However, this point goes a long way in showing that our faith in panels is very limited. The hearsay doctrine exists, for example, because we think panel members are amateur fact-finders that cannot properly evaluate statements made outside their presence. The rules governing character evidence assume that panel members place too much weight on such proof or employ it improperly for punitive purposes.

2. The second reason for evidence law is to serve substantive polices relating to the matter being litigated. Rules that set and allocate burdens of persuasion are examples of this basis.

3. The third reason is to further substantive policies unrelated to the court martial. Privileges are the prime example of this basis. The two spousal privileges (one covering marital confidences, the other covering testimony by one spouse against another) aim to protect marriage, vindicating the widespread belief that martial privacy is and should be protected by preventing a situation of pitting spouse against spouse in a court martial.

4. The forth reason for the law of evidence is to ensure accurate fact finding. Thus the rules on authenticating documents and things (laying a foundation) and the best evidence doctrine that requires the content of a writing to be proved by means of the writing itself exist largely to ensure accuracy, to force the parties and the court to be careful.

5. The fifth reason for evidence law is pragmatic. It is to control the scope and duration of trials. Courts-martial must be resolved with reasonable dispatch, and achieving a final outcome is itself valuable even if it is imperfect. Hence the rules authorize the military judge to control the sequence of proof and the manner of examining witnesses and can exclude evidence that would otherwise be admissible, simply because it would take more time than it is worth and might confuse the panel.

B. User-Friendly

1. Both the Federal and the Military Rules of Evidence are set forth in short provisions in language easily read and largely free from technicality and cross-referencing. The rules can easily be carried to court, quickly perused, and readily understandable. Although user friendly on their surface, evidentiary rules tend to be confusing when actually put into practice.

2. The basis for the MRE is of course the FRE. Understanding the historical development of the FRE helps place into context the MRE.

1.2 The Federal Rules of Evidence

A. Creation

1. The FRE were adopted in 1975. Before 1975 evidence law was mostly a creature of common law tradition. In most jurisdictions there were statutes addressing such matters as physician-patient privilege, admissibility of business and public records, and some aspects of impeaching witnesses.

2. Numerous efforts to codify evidence law preceded the Federal Rules, and four of these are noteworthy:

i. First, Dean Wigmore wrote an early code in 1909 when he was a young man. It was a cumbersome and lengthy document that achieved no success in practice, except perhaps in proving that evidence law could be codified.
ii. Second, in 1945 the American Law Institute proposed the Model Code of Evidence. Professor Edward Morgan drafted and later defended it, and he vigorously disagreed with Wigmore on important points. But the Model Code was radical and highly technical. It would have largely discarded the hearsay doctrine, and its cross-referencing and precise terminology put it on a par with the modern Commercial Code in complexity. As a result, no jurisdiction adopted the Model Code.
iii. Third, in 1953 the first Uniform Rules of Evidence appeared, proposed by the National Commissioners on Uniform State Laws. It drew from the Model Code but was shorter, less technical, simpler in design, and not so radical. Several states adopted the Uniform Rules of Evidence. In 1974 the Commissioners abandoned the original rules and adopted the new Uniform Rules of Evidence (URE) which largely tracks the Federal Rules.
iv. In 1965, the California Evidence Code, put together a comprehensive statutory scheme by a public commission. This code was subsequently enacted by the legislature. It proved highly successful and made important modifications in common law tradition.

B. Adoption

1. The FRE are the most recent and by far the most successful codification. These were proposed by a distinguished Advisory Committee comprised of practitioners, judges, and law professors appointed by the U.S. Supreme Court. The committee labored for more than eight years, producing two published drafts that were publicized among the bench and bar and would-be final version that the Supreme Court accepted and transmitted to Congress pursuant to the Enabling Act.

2. By accident of history, the Rules arrived at Congress as the Watergate scandal was erupting. Amidst claims of executive privilege by President Nixon stirring impassioned resentment in Congress, the privilege provisions in the Rules attracted immediate attention. Acutely sensitive on the matter of legislative prerogative as against presidential power, members of Congress saw the Rules as an encroachment by the other branch, and an infringement of legislative prerogative by the judiciary. Hence the Rules were not destined to pass quietly into law. Instead Congress held hearings and prepared committee reports, scrutinized the Rules, changed them substantially, and finally enacted the changed version in statutory form.

3. Most significant among congressional changes was the deletion of the privilege rules and the adoption in their place of a single provision (FRE 501) leaving privilege to common law evolution.

4. The idea of codifying the rule of evidence was not universally supported. There were several legal scholars who believe strongly that evidence law should not be codified and that the Federal Rules are a mistake. In fact, the Massachusetts Supreme Court believed adopting the FRE “would tend to restrict the development of common law principles” on admissibility of evidence and would not necessarily advance the objective of uniformity between state and federal courts because proposed state rules depart significantly from the federal model. As such, a version of the FRE was not adopted by Massachusetts.

C. Amendments

1. When Congress enacted the Rules Enabling Act, it delegated power to the Supreme Court to prescribe rules of practice and procedure and rules of evidence for cases in the lower federal courts. Rules Enabling Act. 28 U.S.C. §§ 2071-2077. These rules may not “abridge, enlarge or modify any substantive right.” Id. However, all laws in conflict with rules adopted under the Act “shall be of no further force or effect after such rules have taken effect.” Id. Under 28 USCS § 2072, Congress gave the Supreme Court the power to prescribe general rules of practice and procedure and rules of evidence for United States district courts and courts of appeals. The Supreme Court is the rule maker and is assisted by five advisory committees and one standing committee. Any rule cannot abridge, enlarge or modify any substantive right.

2. 28 USCS § 2073, establishes the process for prescribing rules of evidence. The process involves:

a. The Judicial Conference prescribes and publishes the procedures for consideration of proposed rules. The Judicial Conference consists of the Chief Justice of the Supreme Court, the Chief Judge of each Circuit, the Chief Judge of the Court of International Trade, and one district judge from each judicial circuit. 28 U.S.C. § 331. The Judicial Conference may authorize the appointment of committees to assist the Conference. Each committee will consist of members of the bench and the professional bar, and trial and appellate judges.

b. Congress has required the Judicial Conference to appoint a “standing committee on rules of practice, procedure and evidence” to assist the Conference in these duties. The Conference was also given discretion to appoint additional committees to recommend rules to be prescribed. As of 2006, the Judicial Conference has authorized five additional advisory committees, known as the Advisory Committees of Civil Rules, Criminal Rules, Appellate Rules, Bankruptcy Rules, and Evidence Rules. These committees must consist of members of the professional bar and the bench, including federal trial and appellate judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice. Each committee has a reporter, a prominent law professor, who is responsible for coordinating the committee’s agenda and drafting appropriate amendments to the rules and explanatory committee notes.

c. The meetings of any committee are advertised to enable the public to attend. The meetings are generally open to the public unless a majority of the committee determines the meeting should be closed. Each committee is required to keep minutes of their meeting, and these minutes are generally available to the public, unless it involves a closed meeting.

d. If a committee makes a recommendation for change or a new rule, the recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or separate views.

3. Under the Rules Enabling Act, the delegation of congressional authority to prescribe rules is limited in ways that keep the delegation within constitutional requirements. First, Congress did not delegate unsupervised authority to the Supreme Court, but instead retained authority to review and reject the rules promulgated before they take effect. Rules adopted by the Supreme Court must be transmitted to Congress by May 1st in the year the rule is intended to become effective. Congress then has until December 1st to act before the rule takes effect.

4. Congress has recognized the Court’s historical role in establishing procedures for conducting judicial business. However, final review power allows Congress to ensure that the rules adopted are in line with congressional policies, a power that Congress will exercise, and in fact has exercised, when necessary.

5. The Rules Enabling Act establishes intelligible principles for the Court’s promulgation and amendment of Federal Rules of Evidence in the following ways: (1) it designates the Supreme Court as the agency with authority, (2) it provides that the rules must govern evidence in the lower federal courts, and (3) it prohibits the rules from abridging, enlarging, or modifying substantive rights. It also provides that any rules affecting evidentiary privileges must be affirmatively approved by Congress. 28 USCS § 2074.

6. Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.

7. Despite the Rules Enabling Act, Congress has retained the power to enact, and has directly enacted, Rules of Evidence. In 1978, Congress adopted new Rule 412 of the Federal Rules of Evidence. In 1994, Congress not only further amended the Supreme Court’s proposed changes to Rule 412, but also adopted new Evidence Rules 413 through 415. The legislation adopting Rules 413-415 included a 150-day “waiting” period to allow the Judicial Conference to propose alternative rules addressing the issue. However, Congress rejected the Judicial Conference recommendations and allowed its own rules to become law. In addition to the normal process described above, Congress is, of course, free to create or modify rules of evidence.

8. Congress has only rarely exercised its power to create or amend a proposed rule of evidence or to suspend its operation. In 1973, for example, Congress temporarily suspended the adoption of the Federal Rules of Evidence to give itself more time to investigate the proposals. In 1978, Congress adopted new Rule 412 of the Federal Rules of Evidence. In 1994, Congress further amended the Supreme Court’s proposed amendments to Rule 412.

9. Nearly 2.5 years are required to take a proposed rule change through all the committee steps, to the Judicial Conference, to the Supreme Court, and then to Congress. Proposals concerning the Federal Rules of Evidence (other than those arising in Congress) follow these steps:

Suggestion for a change in the rules.(Submitted in writing to the secretary.)
At any time.
Referred by the secretary to the appropriate advisory committee.
Promptly after receipt.
Considered by the advisory committee.
Normally at the next committee meeting.
If approved, the advisory committee seeks authority from the Standing Committee to circulate to bench and bar for comment.
Normally at the same meeting or the next committee meeting.

Public comment period.
6 months.
Public hearings.
During the public comment period.

Advisory committee considers the amendment afresh in light of public comments and testimony at the hearings.
About one or two months after the close of the comment period.
Advisory committee approves amendment in final form and transmits it to the Standing Committee.
About one or two months after the close of the comment period.

Standing Committee approves amendment, with or without revisions, and recommends approval by the Judicial Conference.
Normally at its June meeting.

Judicial Conference approves amendment and transmits it to the Supreme Court.
Normally at its September session.

The Supreme Court prescribes the amendment.
By May 1.

Congress has statutory time period in which to enact legislation to reject, modify, or defer the amendment.
By December 1.

Absent Congressional action, the amendment becomes law.

1.3 The Military Rules of Evidence

A. Historical Background

1. Historically, evidentiary rules applicable in court-martial practice have been derived from several sources:

a. The Uniform Code of Military Justice, 10 U.S.C. Section 801-940;
b. The Manual for Courts-Martial;
c. Rules of Evidence recognized in the practice of criminal cases in Federal District Courts; and
d. Case law from the four service Courts of Criminal Appeals (formerly Courts of Military Review) and the United States Court of Appeals for the Armed Forces (formerly the United States Court of Military Appeals).

2. The foundation for all of this is the Constitution itself, which directs in Article 1, Section 8 that the Congress will regulate the armed forces. The UCMJ represents Congressional rulemaking and itself provides some evidentiary rules. See, e.g., Article 31 (right against self-incrimination) and Article 49 (depositions). But the most important provision lies in Article 36, which states:

a. Pretrial, trial and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States District courts, but which may not be contrary to or inconsistent with this chapter.

b. All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.

3. Article 36 serves as the underlying authority for specifically promulgating the rules of evidence which have appeared in the Manual for Courts-Martial. Although the evidentiary rules have generally been considered to have the force and effect of statutory law (due to Article 36), they must always be tested against the Constitution and the UCMJ. Conflict with either or both of those higher sources will fall the Manual provision. But if the Manual affords greater rights to the accused, then the Manual provision, rather than the Constitution or the UCMJ, will control.

B. Creation

1. In 1980, the evidentiary rules in the military underwent a dramatic change with the implementation of the Military Rules of Evidence. The MREs were the product of a two year effort participated in by the General Counsel of the Department of Defense, the United States Court of Military Appeals, the Military Departments, and the Department of Transportation. The Rules were drafted by the Evidence Working Group of the Joint Service Committee on Military Justice, which consisted of Commander James Pinnell, JAGC, U.S. Navy, then Major John Bozeman, JAGC, U.S. Army (from April 1978 to July 1978), Major Fredric Lederer, JAGC, U.S. Army (from August 1978), Major James Potuk, U.S. Air Force, Lieutenant Commander Tom Snook, U.S. Coast Guard, and Mr. Robert Mueller and Ms. Carol Wild Scott of the United States Court of Military Appeals. Mr. Andrew Effron represented the Office of the General Counsel of the Department of Defense on the Committee. The draft rules were reviewed and, as modified, approved by the Joint Service Committee on Military Justice. The Rules were approved by the General Counsel of the Department of Defense and forwarded to the White House via the Office of Management and Budget which circulated the Rules to the Departments of Justice and Transportation.

2. The original Analysis was prepared primarily by Major Fredric Lederer, U.S. Army, of the Evidence Working Group of the Joint Service Committee on Military Justice and was approved by the Joint Service Committee on Military Justice and reviewed in the Office of the General Counsel of the Department of Defense. The formal road to this major change in military practice was relatively short when compared to the lengthy process used to formulate the Federal Rules. The abbreviated process was due in large part to the fact that many of the Military Rules were simply an adoption of the Federal Rules of Evidence. Although Congress actively participated in drafting of the Federal Rules, it had no part in promulgating the Military Rules. The Rules, by executive order, were created by President Carter on March 12, 1980.

C. Amendments

1. Since the Rules became effective in 1980, they have been amended a number of times by either operation of MRE 1102 or Executive Order.

a. Under MRE 1102: “Amendments to the FRE shall apply to the MRE 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.”

b. Amendment by Executive Order: Under 10 USCS § 836, Article 36, the President may prescribe rules of evidence.

i. The Joint-Service Committee on Military Justice (JSC). The process of recommending changes to the MCM and UCMJ is controlled by the JSC under Article 146 of the UCMJ and DoD Directive 5500.17. DoD Directive 5500.17 formalizes the JSC and defines the roles, responsibilities, and procedures of the JSC in reviewing and proposing changes to the MCM and proposing legislation to amend the UCMJ.

ii. Under the Directive the Department of Defense is required to review the Manual for Courts-Martial annually, and, as appropriate, propose legislation amending the UCMJ to ensure that the MCM and UCMJ fulfill their fundamental purpose as a comprehensive body of military criminal law and procedure. The role of the JSC furthers these responsibilities. Under the direction of the General Counsel of the Department of Defense, the JSC is responsible for reviewing the MCM and proposing amendments to it and, as necessary, to the UCMJ.

16 November 2009

MRE 103 - Making and Phrasing Objections

1. Counsel's Objective. Make timely, well-reasoned objections; state and explain them accurately. Anticipate and defend your case against government objections.

2. Key points.

a. Do's:
(1) Be timely. Nowhere is waiver construed more strictly than with evidentiary objections. If you don't object right away, you've generally waived the objection ( see Mil. R. Evid. 103(a)). Object, therefore, as soon as you feel the instinct. Then pause for a second and . . .
(2) State your grounds (if you can). Try to be more specific than the old standby "irrelevant, immaterial and incompetent." As you fine tune your ear, you will hone the ability to state objections precisely. By pausing before stating grounds you accomplish two things: (a) you gain an extra second or two to think, and (b) you give the judge the chance to sustain (or, unhappily, to overrule) the objection before you state grounds. If you can't come up with a "tag" for the objection ( e.g., relevancy, asked and answered), then give your reasoning. "Your honor, counsel is asking the witness to talk about the theory of urinalysis testing when all he did was run the sample through the machine." The short objection would be "lack of foundation" or "competency," but that sentence accomplishes the same purpose. If you can cogently state your reasons without a summary heading, you have still accomplished your purpose. In addition, you have given the judge time to think -- sometimes the reason she asks for the grounds for the objection to begin with -- and improved your chances of being sustained. Mil. R. Evid 103(a)(1) requires "stating the specific ground . . . if [it] was not apparent from the context." TIP: place a list of common objections inside your trial notebook that you can scan when groping for a basis for an objection. Most importantly, never fail to object out of a fear that you won't be able to articulate the grounds. Trust your instincts that something is wrong.
(3) When do you object? Wait until the question is asked but state your objection before the witness starts to answer.
(4) Be aware of the panel. Panels may be inclined to think that objections are lawyers' gamesmanship. Consider this in deciding whether to object. A panel may assume you are trying to hide harmful evidence. An overruled objection also calls attention to unhelpful evidence that might otherwise have seemed less prominent; don't help the defense highlight its evidence.
(5) Style. Oral advocacy is important even when stating an objection, especially in front of a panel. Choose your wording carefully and be aware of your demeanor. As always, avoid the temptation to feigne outrage, but a weary tone may be appropriate, e.g., in making a reluctant "leading" objection after counsel has persisted in leading. Similarly, true outrage may be valid when counsel has led a witness to an obviously objectionable area.
(6) Plan, plan, plan. You know (or should know) before trial that the government is going to ask one of your witnesses about his prior conviction or to ask your client about prior bad acts under MRE 404(b). Anticipate and write out the objections. Similarly you know that the government likely will object to certain questions that you know you may properly ask. Prepare your responses so that you can reduce fumbling at trial, respond appropriately and keep your focus on your case.
(7) Reduce government openings. One common but easily overcome objection is "insufficient foundation." Such an objection is rarely fatal, because counsel can usually back up a few steps, ask a few more elementary questions, and lay the foundation. Thorough preparation, relying on sources such as Imwinkelried's Evidentiary Foundations, should foreclose most of these objections and contribute to your command of the courtroom.
(8) Stay cool when the government objects. Collect your thoughts and respond. You do not forfeit your legal standing by being courteous, and may even endear yourself to the judge or panel by responding with firm politeness to objections, even trivial ones. If you can quickly overcome the objection or perceive your mistake, offer to correct it ("Your honor, I'll rephrase"); generally, however, you should wait for the judge to rule, because he may overrule the objection.
(9) Respond firmly. Given the growing inclination to let in as much evidence as possible, many objections are overruled, especially those that are more purely matters of form. Therefore, don't retreat right away and offer to withdraw the question or to rephrase a question.
(10) Prepare to make an accurate offer of proof. When the government objects, for example, on relevancy or hearsay grounds a cautious (or indecisive) judge may ask you to make an offer of proof. You must be prepared to state what the witness will say (you will know this from pretrial preparation) and why this witness may properly, for example, quote the victim or lay the foundation for the checks or lab report, or offer an opinion as to cause of death. The judge may allow you to make an oral offer (Mil. R. Evid. 103(a)(2)) or may ask that you present the offer in question and answer form (Mil. R. Evid. 103(b)). In the latter circumstance, you call the witness and examine him just as you would at trial. The judge will then consider the questions and responses and determine how much, if any, of the exam will be admissible . This lets the government see your evidence in advance (not a major problem, given liberal discovery and government pretrial access to witnesses), but it also enables you to prepare your case in detail.
(11) Prepare your witnesses. They must know not to be intimidated by objections. Instruct them to stop speaking the moment an objection is made and not to speak again until directed by the judge; it is futile and rude to try to speak over an objecting attorney. Let them know that you'll be alert to rescue them with objections, but also not to edit their testimony after government objections are overruled. Also tell them they may try to give a more detailed answer than yes or no if such an answer would be incomplete or misleading. Better, insure they know you will rescue them with an opportunity to explain the answer if they are forced into a yes or no answer on cross-examination.
(12) Maybe a government objection can help you. When going through your mental checklist and deciding whether to object, think about how you may be helped. For example, the government might open the door to evidence that you would like to ask this witness -- or their witness -- by asking an otherwise objectionable question of your witness. The government also can help you re-order your case when making foundation or hearsay objections. By requiring you to go through the sometimes mechanical or exhaustive steps of laying a foundation (or laying it more comprehensively than you did the first time), you get the chance to recapture the focus of a panel whose attention you may have started to lose.
(13) Use motions in limine. It is risky to wait until the government asks a question to object. When you anticipate that the government will ask certain questions or offer certain evidence, you should prepare a motion in limine ("at the threshold") to seek a judge's ruling in advance that the government may not offer the disputed evidence. This applies to anticipated hearsay, speculative testimony about which there is inadequate foundation, expert testimony and other prejudicial evidence that you can anticipate. A judge is not required to rule on motions in limine, but often will do so in the interests of clarity and a smooth trial. Your motion alerts the judge, increases the pressure on the government (and smokes out government theories of admissibility) and increases the chance that your objection will be sustained. If denied in limine , you should renew your objection on the merits.
(14) Don't always use motions in limine. You may not want to give the government the advantage of knowing that evidence it plans to introduce is inadmissible. In such situations, consider holding your objection until the government asks the question or offers the evidence. This may derail the prosecution and keep you in control of the courtroom. This should not be your normal course -- you need to be sure your objection will be sustained and that the government will not harm your case just by attempting to offer the evidence, but there are times that you can benefit from remaining mum.
(15) Some common objections:
(a) "Leading." Strictly, a leading question is one that suggests the answer, such as "Isn't it true that it was raining that day?" Not all questions that require yes or no answers are leading. For example, "Was it raining that day?" is not leading, because the witness is free to answer "yes," "no," or "I don't recall." Some judges see this differently, so be prepared to adapt. Reserve this objection for instances in which your opponent is blatantly leading a reluctant, ill-prepared or inarticulate witness. In such circumstances, you should force the government to better craft its questions because (1) you will interrupt the flow of the exam, and (2) highlight to the jury that it is counsel and not the witness who is testifying. If the government puts important words in its witness's mouth, "counsel is testifying" is an effective way to phrase the "leading" objection, because it sounds less whiny ("leading" can sound like an insider's objection) and it tells the panel that counsel is manipulating the proof, afraid to risk its coming from the mouth of his own witness. Remember that counsel always may lead on cross-examination.
(b) "Asked and answered." You need a good reason to use this objection because it can sound petty. If opposing counsel is re-plowing old ground either because he is disorganized or is trying to emphasize a point, you can consider this objection. However, you probably do not care enough -- the jury may hold his tactics against him -- to waste an objection in this area. If he keeps rephrasing the question to get the exact answer he wants, take care of that on cross and in one sentence of argument in which you remind the panel of how the government counsel had to repeatedly mine the witness until the phrasing was to his satisfaction (suggesting that the testimony is less worthy of belief).
(c) "Badgering the witness." Sometimes the judge will sustain it, sometimes he won't. When you are cross-examining a hostile, unsympathetic witness you should badger him up to the point that you risk engendering sympathy. If your witness is being pilloried, however, a "badgering" objection, even if overruled, can be useful because it: (1) reminds the government you're alert and not going to tolerate abusive questions, (2) plants the idea in the government mind that you will renew this objection with this or other witnesses, further hampering the pace and control of the exam, (3) starts the judge thinking about overreaching conduct by the government and, sometimes most importantly, (4) lets your witness know that you'll not abandon him or her.
(d) "Assuming facts not in evidence." Counsel may not slip into a question material that is not before the court. It must either introduce such evidence or ask the question as a hypothetical.
(e) "Compound question." This is almost a neutral objection with a goal of clarity. If the government asks "Did you arrive at 0830 and see the accused in formation," a "compound" objection would lie, because it is unclear whether the response relates to the time of arrival or seeing the accused. For tactical reasons you may want to let the question go and point out in argument that the ambiguous answer is not probative evidence.
(f) "Argumentative." When the government's question is less a true question and more a statement for the jury, object as argumentative. Again, not worth using often but worth posing when counsel repeatedly uses the tactic under the guise of tough, leading cross-examination.
(g) "Beyond the scope of the direct." When the government tries to delve into areas wholly unrelated to the direct exam, use this objection to rein him in. It is worth risking jury curiosity ("What is the defense trying to keep out?") when the objectionable material is damaging but collateral. If especially significant, consider asking for a limiting instruction as well.
(h) "Degrading." Mil. R. Evid. 303 prohibits immaterial and degrading questions "before any military tribunal." This does not include courts-martial, but does include Art. 32 investigations. (16) If you receive a preliminary, tentative ruling from the judge on an objection or motion in-limine, you must object again at the appropriate time to preserve the issue for appeal. See Jones, 43 M.J. 708.

b. Don'ts:
(1) Don't object unless there's a good reason, legal or tactical. The major reasons: courtesy and inevitability.
(a) Courtesy. No one likes to be interrupted when speaking (counsel or witness) nor when a story is being told (judge or panel). Therefore, don't object unless the information is so prejudicial and objectionable that it truly must be kept out, or when there's a strong tactical reason, such as protecting your witness, sending a message to the panel or interrupting your opponent.
(b) Inevitability. If your know from pretrial preparation or experience that the information inevitably will be admitted, it often pays not to bother objecting because you look like the rule-bound counsel trying to play "legal gotcha" and trying to hide evidence.
(2) Don't object during argument unless you have an especially good reason. If the government counsel is stating something in an opening statement that she will not be able to prove, let her lay a trap for herself that you will personally spring when she hasn't kept her promise by the close of the case. If the government is exaggerating or quoting information not in evidence during the closing argument, slam that door in your closing. The statement would have to be especially egregious to warrant interruption of argument; very rarely is it worth the breach of courtesy (or risk of a payback).
(3) Don't argue until the judge asks you to do so. The government makes a spurious objection to which you want to respond, especially in front of a panel. Often the judge will decide immediately that the objection has no merit and say "overruled" without hearing argument. Therefore, there are two good reasons to wait: (1) don't trample on the judge and unnecessarily irk him and (2) the pause give you time to think.
(4) Speak to the judge, never to opposing counsel. Never address your opponent when making an objection and never let your opponent force you to answer him. If he asks you a question, ignore it until the judge asks you to answer it, then answer the judge only. Not only is this common sense (counsel make objections, judges make rulings) but it makes clear that you won't be baited by the government and signals to judge and jury that you remain in control of your case.
(5) State your case outside the hearing of the members. Do not exploit the opportunity to argue an objection in front of the members. If the substance of the discussion could taint the panel -- for good or bad -- request an Article 39(a) session.

11 November 2009

MRE 612 - Recollection Refreshed

I have decided to post on selected Military Rules of Evidence (MRE) as a way to not only help clients understand the trial process, but also to assist my fellow TDS brothern in the trenches fighting the good fight for you. Today's topic is MRE 612 – An Easy Thing That Judges Always Complain We Screw-Up


The Rule: MRE 612: If a witness uses a writing to refresh his or her memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if...it is...in the interests of justice, an adverse party is entitled to have the writing produced...to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains privileged information or [irrelevant] matters...the military judge shall examine the writing...[and] excise any [such] information. Any portion withheld over objections shall be attached to the record of trial as an appellate exhibit. If a writing is not produced or delivered pursuant to...this rule, the military judge shall make any order justice requires, except that when the prosecution elects not to comply, the order shall be one striking the testimony or, if...the interests of justice so require, declaring a mistrial....

Defense Counsel's Objective: There are two important focuses: (1) As the examiner of the witness, salvage the testimony by letting your witness read a document and then testify from their refreshed memory, and (2) be aware that you have certain rights -- including introducing the document used to refresh memory -- when the government refreshes the memory of one of its witnesses.

Key Points:

a. If the witness you are examining loses their memory on the stand, you are not at a loss. It is legitimate and appropriate to refresh their memory by letting them review a document such as a police or lab report.

b. It is important that you are careful and methodical when you do it. Follow these steps:
(1) ALWAYS try to get the witness to testify from memory. In other words, ask the question.
(2) When the witness is unable to answer from memory, ask them if there is something that would refresh their memory.
(3) When they says yes, ask them what that is.
(4) Mark the document as a prosecution exhibit, show a copy to the government and hand it to the witness. Give them time to read it.
(5) WITHDRAW the document from your witness.
(6) Ask the initial question again; have them testify from their REFRESHED memory.

c. Don't be afraid to use this technique. It's not sneaky or below-board. It's lawful and especially appropriate for witnesses testifying about technical data, easy-to-forget matters such as dates, license plates or nanogram counts, or for young or nervous witnesses.

d. REHEARSE with your witness. Anticipate the need for this -- which should become clear during pretrial preparation -- and explain to the witness the process you will go through to refresh their memory.

e. BE EXACT about the procedure. Follow it precisely. Be sure to withdraw the document so that the witness testifies from their MEMORY (albeit their refreshed memory) and not from the paper.

f. Distinguish use of the document as a substitute for testimony, which would be past recollection recorded -- a hearsay rule, requiring reference to MRE 803(5). When you are refreshing memory, the testimony, not the document, is the evidence; but you mark the document as a defense exhibit and append it to the record.

g. Remember the theory of this rule. It "is designed to regulate discovery of documents." United States v. Haston , 24 M.J. 313, 315 (C.M.A. 1987), cert. denied , 484 U.S. 955 (1987). Its purpose is to let the other side look at the document used to refresh a witness's memory. It keeps your adversary from slipping the witness a note or cheat sheet, and lets you suggest to the fact finder that the witness was coached.

h. Have a copy of the document you use to refresh the witness's memory ready to show to the government. More importantly, be aware of two important defense rights:
(1) "[T]o introduce into evidence" the portions the government witness relies on. Insure that it does not contain embarrassing or unhelpful information to the defense. Don't be sneaky and use an excerpt from a document, if the full document will harm your case.
(2) Government failure to produce the document will result in either striking of their witness's testimony or, when appropriate, a mistrial.

i. Mask the document so that irrelevant or privileged information cannot be read. The rule requires the judge to redact irrelevant or privileged information. Have a masked copy and an original ready for inspection.

j. You can refresh government witnesses. In an appropriate circumstance, you may want to refresh the testimony of a government witness by referring them to a document. When the document is a statement by that witness, you may prefer to use it as a prior inconsistent statement under MRE 613, because that gives you more rights and flexibility (directing the witness to read from it).

k. When you're on the other side, always take the time to read the entire document, be sure to cross the witness with the document if it sounds unduly suggestive or prompts the witness in a way that you think the panel ought to know. If you are given the opportunity to be present during an out-of-court refreshing of a witness, do not decline and go to lunch, as the defense counsel in Haston did. Id. at 314.

l. In appropriate cases, argue to the panel that their witness had to have their memory refreshed. Even though refreshing memory is an appropriate tool of advocacy, it is permissible and appropriate to comment on the witness's inability to recall certain facts -- especially if they are facts that a panel would expect a witness to know. In denying a defense request for relief, the Court of Military Appeals noted that the defense "was privileged to point out to the members the fact that [the witness's] memory had been refreshed...." Id. at 315.

m. Be aware that the rule also permits discovery of material used to refresh a witness's memory "before testifying." This means you can request such information from the government, but also counsels against giving your witnesses written copies of your questions with suggested answers or even the answers witnesses have provided in interviews. Rehearsal is appropriate and encouraged; leaving yourself open to discovery of such documents is embarrassing and may produce allegations that you created the testimony of your witnesses. The rule "is not an exclusive catalogue of instances under which a witness' recollection may be refreshed." Id. at 315.

Practice Sample: (on direct)

DC: Agent Smith, what was the address of the house where the alleged assault took place?
Smith: I can't remember. I know it was near the post, but I can't remember anything more specific.
Q: Is there anything you could review that might help you to remember?
A: Yes, the report I made shortly after completing my investigation.
Q: I'm showing you what's been marked as Defense Exhibit E for Identification, previously provided to the defense by the government. What is that?
A: It's a copy of my report regarding this case.
Q: Please read it over.
Q: I am now retrieving Defense Exhibit E for Identification from the witness.
Q: Does that refresh your memory?
A: Yes.
Q: Again, Agent Smith, what is the address of the house where the alleged assault took place?
A: It was 1227 Craig Street just outside the East Gate of the post.

05 November 2009

Fort Hood Shooting

An Army psychiatrist opened fire Thursday at Fort Hood, Texas, killing 12 people and wounding 30. Eleven of the victims died at the scene, military officials said. A 12th died later at a hospital. U.S. officials identified the gunman as MAJ Nidal Malik Hasan, an Army psychiatrist who had been promoted to major in May. Defense officials said Hasan, 39, arrived at Fort Hood in July after practicing for six years at Walter Reed Army Medical Center in Washington, which included a fellowship in disaster and preventive psychiatry. Earlier reports stated that Hasan was shot and killed, but now the Army is reporting that he survived being shot. He is in custody and in stable condition.

03 November 2009

Solider Arrested for Possession of 100 Pounds of Explosives

An Army Special Forces soldier was arrested on Monday after a pair of hunters found about 100 pounds of explosives outside his home near Fort Campbell. The Army did not release the rank or age of the soldier. However, the Army did identify the soldier as Timothy Ryan Richards. Richards allegedly possessed about 100 pounds of explosives and two unregistered firearms . Richards appeared in Federal Court on Monday. A federal public defender was appointed to represent him. He is currently being held without bond. For more information go to this link: Times News