Context evidence and . . .

I have previously posted about “context testimony” usually from law enforcement officers to set the stage for why an investigation began. While not exactly addressing this issue, NMCCA has come close and has a useful discussion of how similar context evidence is not admissible.

In United States v. Combest (an unpublished op.) the court sets the facts.

Soon after arriving home [from apparently being assaulted], DW told her sister, AH, that she had been sexually assaulted by the appellant. AH then called the police. It is DW’s statement to AH that gives rise to the appellant’s assignment of error.

Good – the defense objected at trial. Although as the court discusses everyone forgot about an agreed limiting instruction and one wasn’t given.

The government argued, as it usually does, that the testimony was offered for an effect on the listener (something often argued in the context testimony situations). Why they needed to do that is not clear. There did not appear to be an issue of delayed reporting or other relevance to the point that AH called the police. The court noted:

We can locate no case law from the Court of Appeals for the Armed Forces or our own court controlling the question of whether AH’s testimony was properly admitted under an effect-on-the listener theory. This question has, however, been addressed by other federal appellate courts and their treatment of the issue is instructive. See United States v. Cass, 127 F.3d 1218, 1223 (10th Cir. 1997); United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994); United States v. Martin, 897 F.2d 1368, 1371 (6th Cir. 1990) [as well as United States v. Hinson, __ F.3d __ (10th Cir. Nov. 3, 2009) (No. 08-3086); United States v. Silva, 380 F.3d 1018, 1019-20 (7th Cir. 2004); United States v.. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006); United States v. Davis, 449 F.3d 842, 847 (8th Cir. 2006); United States v. Benitez-Avila, __ F.3d __ (1st Cir. June 9, 2009) (No. 08-1463)]. The prosecutors in each of the aforementioned cases elicited testimony, over hearsay objections, that contained out of-court statements that heightened the culpability of the respective defendants. In each case, the Government argued that the statements were not being offered for their truth, but to elucidate the investigatory background, provide context for the jurors, and show why law enforcement took the steps it did.

Again refer to my prior context posts, End runs and talismanic incantations, and Just laying the groundwork your honor! and Background testimony by police; and Investigator context testimony. NMCCA then applied a Mil. R. Evid. 403 balancing test and concluded admission of the testimony was error. As the ‘context’ cases discuss this type of testimony is usually of minimal value and offered as irrelevant bolstering. Had there been a defense challenge or attack about the timeliness of a report, then there might have been relevance. Of course in context the error was non-prejudicial.

I think the result was correct in the case under the circumstances. But it is a reminder to object and to ensure a detailed balancing is applied by the military judge. If the MJ lets the testimony in anyway, make sure to help propose a limiting instruction and make sure it is given. Prior post on Limiting instructions