In sentencing, an accused may introduce matters in extenuation or mitigation to lessen the punishment received at a court martial. Matters in extenuation include circumstances surrounding the commission of the offense, while matters in mitigation are personal factors concerning the accused. An accused may introduce such evidence either through the testimony of witnesses, documentary evidence,…
Military Rule of Evidence 412 is an exclusionary rule that places the sexual behaviors of an alleged victim of a sexual offense beyond the limits of relevancy. Any evidence of the “sexual behavior” or “sexual predispositions” of an alleged victim is forbidden from being admitted in any proceeding. The Rule does have three stated exceptions…
1. Counsel’s Objective. To admit proof of easily ascertained or generally known facts in order to save the time and costs of more formal methods of proof. 2. Key points. a. Goal of Rule 201: to seek notice of “almanac-type facts” to avoid the cumbersome, time-consuming proof process. For example: (i) That 6 February 2010…
MRE 106 allows counsel to use rule to give the Judge or the court-members an accurate and clear understanding of a writing or recording offered by opposing counsel. 2. Key points. a. Counsel may effectively use the rule when their opposition attempts to offer only a portion of a writing or recorded statement. The rule…
RESIDUAL HEARSAY 1. Rule 807: A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for…
DEMONSTRATIVE EVIDENCE 1. UCMJ or Manual References. None directly address demonstrative evidence. General provisions regarding authentication, relevance and prejudice apply to demonstrative evidence. 2. Counsel’s Objective. To illustrate, amplify, punctuate, and explain the direct evidence in the case. This is accomplished through physical items created for use in trial — charts, graphs, models, etc. —…
1. Counsel’s Objective: Appropriately limit when character evidence may and may not be used under Rule 404 and the manner in which it may be presented under Rule 405. 2. Key points. a. Character evidence is inadmissible to prove that a person acted in conformity therewith on a specified occasion. “The State may not show…
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…
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…
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))….
