Here is an interesting piece on federal evidence review:

Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that “[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant’s failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, inUnited States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

Two weeks ago, the Federal Evidence Blog reported a recent Ninth Circuit case in which the circuit remanded a conspiracy and arson conviction because the trial judge failed “to make adequate inquiries regarding news stories” that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore “whether any juror heard any of the information” and its impact on the jury. See “Trial Court’s Duty To Make ‘Adequate Inquiries’ About Extrinsic Influences On Jury” (Oct. 6, 2010). A contrasting and much more usual case is one in which a party learns of the influence of news reports after the trial concludes. For example, in United States v. Kelley,

Member: Sir I’m the unit victim advocate. Individual voir dire continues blah, blah, blah.

Def: The defense objects on implied bias and liberal grant mandate.

MJ: Explain why please.

Def: Blah, blah, blah.

TC: The government objects to the defense challenge. There is no evidence of bias or potential bias, the member won’t be an expert in the deliberation room, and the public won’t have a warped perception of the system with an advocate for sexual assault victims being a member in a case of multiple sexual assaults.

MJ: Challenge denied.

And yes, under the current prosecution extremely favorable pro-government (made by and for the government, even though they have unlimited preemptory challenges in the initial selection process) rule the member was pre-empted and the challenge can’t be preserved.

From my trial notebook.

Sine qua non for a fair court-martial is members free of bias. A member shall be excused in cases of actual bias or implied bias. United States v. Napoleon, 46 M.J. 279, 282-83 (C.A.A.F. 1997); United States v. Minyard, 46 M.J. 229, 231 (1997); United States v. Daulton, 45 M.J. 212, 217 (1996); United States v. Harris, 13 M.J. 288, 292 (C.M.A. 1982). Implied bias. Implied bias when “most people in the same position would be prejudiced.” United States v. Armstrong, 54 M.J. 51, 53-54 (2000), quoting United States v. Warden, 51 M.J. 78, 81 (1999); United States v. Smart, 21 M.J. 15, 20 (C.M.A. 1985). Implied bias is viewed through the eyes of the public, focusing on the appearance of fairness. United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008), is newest case on implied bias, which again seems to cut back on the concept; as well as the liberal grant mandate. This is a good 2008 article on implied bias, Colonel Louis J. Puleo, Implied Bias: A Suggested Disciplined Methodology, Army Law., Mar. 2008, at 34.

Ultimately the issue wasn’t preserved because of an acquittal on the two sexual assault charges.

The issue was prosecution sentencing evidence of other acts toward the victim which had not been charged. Appellant alleged that the military judge failed to conduct a proper 1001 and Mil. R. Evid. 403 balancing test. NMCCA disagreed.

NMCCA found that the military judge properly evaluated the evidence as to its admissibility, including a 403 balancing. The court further found that the military judge correctly gave a limiting instruction to the members on how they could use the additional evidence.

You’ve seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, “Objection, your Honor,” and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, “Objection,” in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.

Mil. R. Evid. 103(a)(1) requires that when making a motion counsel at court-martial, “[state] the specific ground of objection, if the specific ground was not apparent from the context[.]”

Remember that another requirement related to objections is an offer of proof where the MJ sustains a prosecution objection.

Under Federal Rule of Evidence 103(a)(2), the objecting party must make an offer of proof to the court, or else show that the substance of the excluded evidence was apparent from the context of the proceeding, to preserve an objection to a ruling excluding evidence. Fed. R. Evid. 103(a)(2); United States v. Quinn, 123 F.3d 1415, 1420 (11th Cir. 1997). Here, the government notes, there is no indication that the district court knew the nature of the evidence since Henderson did not identify it until a post-trial motion and his initial appellate brief. After trial, Henderson claimed that he wanted to present evidence that Collins was also dismissed because he had engaged in a domestic dispute with his wife that involved his service weapon. He argues that he could not have made an offer of proof at trial because the district judge did not permit bench conferences, requiring parties to reserve issues they did not wish to discuss before the jury to a time when the jurors were not required to be present in court. Moreover, he indicates that the district judge also forbade “speaking objections,” where the objecting party explains the basis for its objection, allowing the objecting party to voice only a very abbreviated basis for its complaint.

United States v. Henderson, 409 F.3d 1293, 1298 (11th Cir. 2005).

And finally be attuned to the counsel who makes a “speaking” objection in front of the members. Here is a little piece from the Utah State Bar Journal about speaking objections. Note the reference to Senior Judge Cox, of CAAF. The three primary reasons for such objections cited are:

1. to coach a trial witness;
2. to argue to the jury during trial – before the appropriate time for closing argument; and
3. to make at least some objection when an attorney is at a loss over what to say about bothersome evidence or argument.

Romero’s counsel offered a speaking objection that the allegation was made by Cuellar, that it was not a conviction, that it was not a proven fact, and that there was no police or incident report. At sidebar, the district court overruled the objection and admonished defense counsel for arguing to the jury during an objection.

United States v. Romero, No. 08-40793, 2009 U.S. App. LEXIS 17350, at *7 n.2 (5th Cir. Aug. 4, 2009).

The prosecutor’s speaking objection misstating the law on the presumption of innocence was improper. A new trial is required if that misconduct taken in the context of the entire trial prejudicially affected the defendant’s substantial rights so as to deprive him of a fair trial. See United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996); United States v. Malone, 49 F.3d 393, 398 (8th Cir. 1995); United States v. McGuire, 45 F.3d 1177, 1189 (8th Cir. 1995), United States v. Emmert, 9 F.3d 699, 701 (8th Cir. 1993); United States v. Joson, 968 F.2d 768, 770 (8th Cir. 1992). Having reviewed the trial transcript, we conclude that the improper remarks could not reasonably have affected the jury’s verdict. See United States v. Alanis, 945 F.2d 1032, 1037 (8th Cir. 1991).

United States v. Grassrope, 342 F.3d 866, 871 (8th Cir. 2003) cert. denied Elder v. United States, 537 U.S. 1140 (2003).

And really finally of course, here’s how not to make an objection – and get removed from court in hand-cuffs in front of the members and your client.

Appellant Maurice Elder (“Elder”) seeks review of his conviction and sentence on cocaine possession and distribution charges. With respect to his conviction, Elder argues that he was denied due process of law when the district court had lead defense counsel removed from the courtroom, especially given the nature of that removal [in handcuffs]. A careful examination of the record, however, reveals a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges. Over much of the trial and immediately prior to her removal, counsel was repeatedly warned about yelling at the court and making sarcastic remarks.

United States v. Elder, 300 F.3d 996, 0–2 (9th Cir. 2002).

The dissenting judge had this to say:

This case is remarkable for at least three reasons, and for these reasons, I must dissent. First, Elder’s trial counsel x was physically brutalized by the District Judge in front of the jury for correctly insisting that the Judge was mistaken about a prior ruling he had issued in her client’s favor. Second, in explaining his treatment of x, the District Judge stated before the jury that she deserved what she got because she was “trashing the United States.” In other words, she was unpatriotic. Third, the majority cites to a California state court decision as support that defense counsel is a bad person, with a history of “surly, disruptive, and contemptuous behavior.” Majority op. at 8281. In doing so, the majority ignores the fact that the criticism of defense counsel throughout her career may be caused in part by anti-feminism within the legal community. In particular, some in the legal profession may be more offended by aggressive and combative litigation tactics from a female attorney than from her male counterparts.

United States v. Elder, 300 F.3d 996 (9th Cir. 2002).