“Now what I want is, Facts.. . . Stick to Facts Sir!” (Charles Dickens, Hard Times, p. 1, Oxford World’s Classics, 1998.)

Evidence may be admissible under Mil. R. Evid. 803(8) as an exception to the hearsay rule. Prof. Colin Miller reminds us that the exception is intended to cover recorded facts, not opinions.

And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (4) Distinctive Characteristics and the Like. – Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

Prof. Miller cites to United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). Note that in the case cited the counsel had failed to object and preserve the objection.

There are (typically) several evidentiary/admissibility issues that frequently come up when the prosecution wants to admit emails (or text messages). My experience generally is that someone, usually the witness or law enforcement have selectively provided an email which is then cut-and-pasted for the “relevant” part by law enforcement. Usually law enforcement does not ask the witness to provide the full email or text string. That cherry-picked email or text message is then emailed to the trial counsel, the trial counsel prints out the email, and the trial counsel offers the item, the trial counsel also failing to recover the full email or text string. By the time you get to court there are issues of whether the email string or text string is available because of the passage of time. Trial counsel don’t seem to blush at this failure to preserve potential evidence.

1. Completeness under Mil. R. Evid. 106. The defense should always require production and discovery of the whole email or text chain where it is obvious that the proffered exhibit is a part of a chain. Why, well because other parts of the email chain may set up a contradiction or help to explain what is being offered. So for example NCIS supplies the trial counsel with an email from the complaining witness in which the accused says, “OK, I did it.” But what they don’t supply is the other parts of the email in which the accused also explains, “I did it because you told me I could.” It would seem to me that a portion of an email or text message is unreliable. That the message can only become reliable once the whole string is produced. The whole string being part of “the circumstances.”

2. Completeness under Mil. R. Evid. 304(h)(2).

Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

And don’t forget about United States v. Rodriguez, 56 M.J. 336 (C.A.A.F. 2002), and United States v. Gilbride, 56 M.J. 428 (C.A.A.F. 2002) on the general issue of completeness under Mil. R. Evid. 304(h)(2).

3. Who is the witness. The trial counsel who printed out the piece of evidence that is typically being introduced. You can tell because their name is blazoned on the top of the document courtesy of Outlook print functions.

Take a look at United States v. Taylor, 61 M.J. 157 (C.A.A.F. ); United States v. Johnson, ACM 34889, 2004 LEXIS 133 (A. F. Ct. Crim. App. May 21, 2004).

Federal Rule of Evidence 605 provides that The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. Conversely, Federal Rule of Evidence 614(b) provides that “[t]he court may interrogate witnesses, whether called by itself or by a party,” and Federal Rule of Evidence 614(c) provides that Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let’s consider the recent opinion of the First Circuit in United States v. Santana-Perez, 2010 WL 3491143 (1st Cir. 2010).

And here is how Professor Miller concludes the practical question of what to do rather than what’s the rule.

If a judge is testifying and a party objects, I could see the judge feeling that his integrity had been attacked. It seems to me, however, that the judge would mostly feel that his competence had been attacked and not that he was favoring one side over the other. And, of course, if the judge were indeed testifying, it would be clear that he made a mistake, and the trial could move on. But, if a judge engages in overly aggressive interrogation and a party objects, it is hard to see how the judge could take the objection as anything but the party calling his integrity into question. Moreover, because it is not a black and white issue like judicial testimony, it is easy to see the objection having lingering effects. I thus don’t see why an objection to judicial interrogation is required by an objection to judicial testimony is not.