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Motions pretrial

As military defense lawyers we believe that pretrial motions at court-martial should be made whenever possible. Motions help exclude bade evidence, help get good evidence into trial, and can help shape the nature of the case we are defending. A successful motion to suppress evidence could be a game-changer.

We see too many young military defense counsel give up on reasonable motions because their analysis says "the motion is a loser." The motion may be a loser, but if you do not raise the issue, on appeal the courts will find the issue is waived and will not bother with it.

Challenging, often through motions in-limine, evidence should be a stock-in-trade for your military defense lawyer. Under the UCMJ and Manual for Courts-Martial, as well as the various Court rules, a military defense lawyer can file motions in advance of trial.  It is a good idea.  It is better to litigate the issues before the trial counsel (prosecutor) has a chance to have them mentioned in front of the members (the jury in civilian parlance).

An example
When the prosecution wants to call the investigator to "set the stage."

We object to the testimony as irrelevant, improper bolstering of testimony to come, back-door introduction of hearsay and other evidence, and sometimes violating the Constitutional right of confrontation. We go on to say,

Context testimony generally begins with a detailed recitation from the law enforcement agent about getting a call, what they did, who they spoke to, what was told to them, and what they did as a result of that (not meaning to be glib but this often turns into a "tell us what you had for breakfast" introduction). In the process the agent testifies to hearsay, which brings up Confrontation issues, gives opinions, and wastes court times, which is a part of the Mil. R. Evid. 403 concerns. In reality, all that the agent need testify to and which ought be admissible are factual statements that, for example, AAs a result of a allegation, I took possession of the following items of clothing and bedding,or, X was identified as a suspect, so I interviewed him and this is what he said.

Frequently when challenged the prosecution will assert that such testimony is merely background information to Set the stage or to give context, and that Ait is not offered for the truth. Such information is of minimal value, other than to prejudice the accused, and wastes court time.  Further it constitutes improper bolstering of other testimony. There is not much military case law on this subject but there is federal case law that we use to support our argument.

An example:
When the prosecution wants to introduce other acts to prove you did the crime.

Mil. R. Evid. 404(b), allows the prosecutor to introduce other acts of misconduct for various reasons--to show a modus operandi, to show an absence of mistake on your part, or your acts are all part of a plan. This is when we do a pretrial motion to exclude this type of evidence and put the burden on the prosecution to show why the evidence is relevant and admissible.

Typically we get a few sentences in a written notice. We then argue that the prosecution is required to state under what theory the evidence is admissible, and they have not done so.  The prosecution must be specific as to the theory of admissibility and engage the analysis from United States v. Reynolds, 29 M.J. 105 (C.M.A. 1898).  The party proffering the evidence should delineate the theories of admissibility and not merely render a talismanic incantation of all the bases listed in the rule, as so often happens.  See, e.g., United States v. Jenkins, 48 M.J. 594 (A. Ct. Crim. App. 1998). The A trial judge must be careful to ensure the evidence really is admissible. Often the evidence is merely propensity evidence trying to make you out to be an overall bad person. United States v. Stanczyk, No. ARMY 20110438, 2014 CCA LEXIS 11, at *26 (A. Ct. Crim. App. Jan. 10, 2014) (unpub.) petition den. 73 M.J. 478 (C.A.A.F. 2014).

The prosecution cannot offer prior bad acts just to show, and which merely show, a bad person who may have some predisposition to commit the crime.  United States v. Humpherys, 57 M.J. 83, 90-91 (C.A.A.F. 2002).  This makes sense, profiling and propensity have rarely been a legitimate consideration for trials, except for military sexual assault cases.

In United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989), the court established a three-prong test to determine the admissibility of uncharged misconduct under M.R.E. 404(b):

1. Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts?

2. What "fact . . . of consequence" is made "more" or "less probable" by the existence of this evidence?

3. is the "probative value . . . substantially outweighed by the danger of unfair prejudice"?

We sometimes see this problem in drug cases. These questions call to mind similar questions when an accused of unlawfully using a controlled substance, and the prosecution wants to introduce prior unlawful uses under Mil. R. Evid. 404(b)—that is not allowed.  Put simply, that an accused once may have unlawfully used a controlled substance in the past does not prove that he did for the charged offense—that’s propensity plain and simple.  See, e.g., United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992); Cf. United States v. Frey, 73 M.J. 245, 250 (C.A.A.F. 2014).

We consult on evidence issues.

We consult on motions.

We file motions whenever we can because we believe aggressive military defense counsel and lawyers must make sure only truly relevant and admissible evidence is used against you.
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