SHOULD THE MILITARY ADOPT THE FEDERAL RULES OF
WALTER B.
HUFFMAN
378
EVIDENCE?
Should The Military Adopt The Federal Rules of Evidence?
INTRODUCTION
After approximately 13 years of study, debate, amendment and controversy,
the Federal Rules of Evidence were signed into law on January 2 , 1975.*
The
purpose of the Federal Rules was to provide a comprehensive and uniform set of
evidentiary rules for federal district courts and United States magistrates.
Military courts, although not created pursuant to Article III of the Constitution,
are clearly federal courts.
Military courts, however, are presently governed by
2
their own rules of evidence as promulgated by executive order of June 19, 1969.
The Military Rules are principally found in Chapter 27 of the Manual for CourtsMartial
(MCM).
Because Military courts are federal courts, and because the Federal
Rules
of Evidence represent the consensus of many of the best qualified legal minds
in the United States, one may pause to wonder whether there is any reason for
the Military courts to cling to a different set of evidentiary rules.
the purpose of this paper to suggest an answer to that question.
It is
In doing s o ,
the Federal Rules will be compared with the Military Rules in an attempt to
discern the differences between them.
A particular point of focus will be the
question whether, when a difference exists, the difference is necessary because
of the admittedly unique needs and status of military service.
For the sake of
convenience, the approach taken in the comparative section of this paper will be
to follow the forjriat of the Federal Rules.
I.
General Provisions (Rules
101-106)
Rules 101 and 102 concern the scope and construction of the Federal Rules
3
and need no comment.
cant rule is 103.
For the purposes of this discussion, the first signifi-
Rule 103 basically says that for a party to claim on appeal
3*79
that evidence was either wrongfully admitted or wrongfully excluded, that party
must have preserved the error by objecting or making an offer of proof respectively.
The purpose of the rule is to (1) insure the matter was brought to the atten-
tion of the trial judge and (2) to furnish a complete record for review by appellate
courts.
The Military Rules on offer of proof and objections are stated at para.
154 (c) and (d).
Whereas the Federal Rules make an offer of proof or objection
mandatory to preserve appellate error, the military provisions are permissive.
In fact, para 154 (d) states that "a mere failure to object does not amount to a
4
waiver with respect to the admissibility of evidence . . . . " .
It should be noted
in this regard that the Federal Rules are meant to govern both civil and criminal
proceedings whereas the Military Rules concern only criminal matters.
Historically,
courts reviewing criminal cases have been less willing to be bound by the failure
5
of trial attorney's to recognize and preserve errors than have civil courts.
Federal Rule 103 (d) recognizes the civil-criminal dicotomy by stating that despite
the mandatory terms of Rule 103 (a), an appellate court may take notice sua sponte
of "plain errors affecting substantial rights although they were not brought to the
attention of the court".^
Thus, there appears to be no real difference between the Federal and Military
Rules except that Federal Rule 103 (a) is a commendable attempt to force trial
counsel to create a complete record for review.
Because the Military Rules also
recognize that the purpose to be served, especially by offers of proof, is the
creation of a complete record,'' there would seem to be no objection to adopting
the Federal Rule that more directly reaches that result.
Additionally, a review
of the applicable military case law indicates t h a t , in practice, military appellate
courts will not review an assignment of error based on admissibility of evidence
o
unless there was a trial objection.
The rule as stated is subject to the
exception that where the error is so substantial as to prejudice the defendant's
rights, the reviewing courts will not be bound by mechanical failures at the
g
trial level.
380
- 2 -
Federal Rule 103 (b) allows the trial judge to assist in the attempt to
present a complete record for appellate review by directing that offers of proof
be made in a certain form and clarifying offers and objections m a d e .
This rule
is clearly more procedural than evidential,*^ but it nevertheless appears to
11
comport with the applicable provisions of the MCM
12
and military case law.
As with the other subsections of Federal Rule 103 previously discussed, Rule 103 (b)
simply provides a clear method of reaching a goal sought by all appellate courts —
the production of a complete record for review.
Rule 103 (c) states that arguments on objection to inadmissible evidence and
offers of proof on the same should "to the extent practicable" be held outside the
hearing of the jury.
This rule recognizes the simple fact that a ruling that
evidence is inadmissible will be of little
13 practical effect if the jury has already
been exposed to that evidence.
The MCM
recognizes the same fact by a procedural
rule which allows the military judge to exclude the members of the court upon
14
motion of counsel or on his own motion if prejudice to either party might r e s u l t .
H e n c e , there appears to be no discernible difference between the Military Rule and
the Federal Rule except that the Military Rule is not located in that section of
the MCM concerning evidence.
Federal Rule 104 is entitled Preliminary Questions.
It provides in subparts
(a) and (b) that preliminary questions on qualification of witnesses and admissibility of evidence shall be determined by the trial judge unless there is a question
of relevancy dependent on a condition of fact.
If relevancy is conditioned on fact,
the judge will make a preliminary determination on whether sufficient foundation
evidence exists.
If s o , the evidence is admitted with the jury to make the final
15
determination.
There appears to be no exactly comparable Military Rule.
However,
the MCM does state that all questions of law are to be decided by the j u d g e . 1 6
It
also provides that questions on the admissibility of evidence will be heard by the
trial j u d g e . A l t h o u g h
the Military Rules do not state the treatment to be given
381
-36-
relevancy conditioned on f a c t ,
183
there would seem to be no objection to having a
factual issue determined by the court members rather than the judge.
Federal Rule 104 (c) states that all hearings on the admissibility of confessions are to be conducted outside the hearing of the j u r y .
This rule represents
a minimal expansion of the Military Rule which states that the hearing will be
19
held outside the hearing of the jury if the accused so requests.
Rule 104 (c)
also states that hearings on other preliminary matters may also be held out of
the jury's hearing when justice so requires, o r , when the accused is a w i t n e s s ,
he so requests.
This also represents a slight expansion of the Military Rule
which allows the judge to exclude the court members
from preliminary hearings
20
when prejudice to either party might result.
Because the Military Rule by its
terms seeks to prevent p r e j u d i c e , there is no apparant objection to the adoption
of a slightly more l i b e r a l , and therefore more effective rule with the same goal.
Federal Rule 104 (d) states that the accused does n o t , by testifying on a
preliminary m a t t e r , open himself to cross-examination on other issues in the case.
The Military Rule only places this limitation on cross-examination when the
accused testifys in a preliminary hearing on the voluntariness of a confession
or admission. 21
The Federal Rule is intended to encourage the participation of
22
the accused in hearings on preliminary matters.
The limitation on cross-exami-
nation is considered necessary in this regard because of the broad scope of
cross-examination otherwise allowed under Federal Rule 611 (b).
Therefore, if
the military should choose to adopt 23
Federal Rule 611 (b), this section should also
be adopted as a necessary correlary.
Federal Rule 104 (e) merely states that the provisions of Rule 104 do not
limit the right of parties to introduce before the jury evidence relevant to
weight or credibility.
Federal Rule 105 follows the rule of most jurisdictions that allows a
limiting instruction, upon request, on evidence that is admissible as to one
382
party or for one purpose, but not as to other parties or purposes.
24
The Military
Rules relating to the same subject a p p e a r , on their face at least, to be somewhat
different.
The general rule is phrased in mandatory terms and states that evidence
admissible against only one of several accused may be considered only against that
defendant.
25
However, the other relevant sections of MCM list only two instances
oc
in which the rule is specifically to be imposed.
T h u s , although the Military
Rule seems to impose a duty on the judge to limit the scope of evidence and instruct
accordingly sua sponte, the focus of the rule seems to be on two clearly prejudicial
27
situations.
A p p a r e n t l y , there is no conflict in purpose between the Federal Rule
and the Military Rule.
Both are intended to protect the co-defendent against whom
the evidence is inadmissible from undue prejudice.
A l s o , in actual practice, there
would seem to be f e w , if a n y , situations where the judge ,<vould not be alerted to
the inadmissibility of evidence toward one co-accused in the first instance by
that person's counsel.
T h u s , the military and federal practice in limiting evidence
as to parties may be little different in practical effect.
It should be noted,
however, that the Federal R u l e , unlike the Military R u l e , also allows limited
admissibility as to purpose. This phase of the Federal Rule is quite valuable
in allowing flexibility to the trial judge in his rulings on admissibility 28 and
29
could be equally as useful in courts-martial.
Federal Rule 106 is an expression of the rule that when a part of a writing
is introduced, and fairness demands that the remainder of that writing or another
writing be considered contemporaneously, the adverse party may require that the
other material also be introduced.
There is no comparable Military Rule.
There-
f o r e , because the MCM adopts the Federal Rule by reference when no Military Rule
is prescribed.
Federal Rule 106 is arguably already a part of military evidence.
II.
Judicial Notice (Rule 201)
A comparison of Federal Rule 201 with the Military Rule on judicial
3S3
notice
31
is a rather complex task.
This is so because:
(1)
The Federal Rule draws a
distinction between "adjudicative" and "legislative" facts; (2) The Federal Rule
does not deal with the question of judicial notice of foreign law, but instead
treats it as a procedural matter;
32
(3) The Military Rule deals with foreign law,
33
but in doing so recognizes that it is not actually speaking of judicial
notice;
(4) The Military Rule contains an exhaustive list of things that can be judicially
noticed, but within the same rule imposes a requirement that most of those items
34
must be supported by what might be termed a "modified offer of proof".
Despite
these distinctions and differences, however, close examination of the rules reveals
that the distinctions are more in method of approach and semantics than purpose
and effect.
Indicative of the semantic distinctions between the rules is the limitation
of the Federal Rule to judicial notice of "adjudicative facts".
This so-called
distinction is of no moment for the simple reason that the Military Rule also
only concerns adjudicative facts although it does not specifically draw any dis35
tinction.
The similar purpose of the Military and Federal Rules is demonstrated
by the fact that both allow judicial notice of the same kinds of facts.
facts that are not subject to reasonable dispute because they are either:
These are
(1)
generally known in the jurisdiction where the trial is held or (2) capable
of
36
ready determination from a source of reasonably indisputable accuracy.
Addition-
a l l y , although the determination of foreign law is carried under judicial notice
by the m i l i t a r y , both military and federal civilian authority seems
to agree that
37
foreign law is not a proper subject for "true" judicial notice.
Because the
military has no procedural rule concerning the determination of foreign law, it
would be necessary for the militaryV to
' keep their present rule of evidence for
38
this purpose
if the Federal Rule was adopted.
-Jf
The ideal solution would appear
to be for the Military to adopt the Federal R u l e , which presents a clear statement
of judicial notice, and then adopt the present Military Rule on determination of
foreign law as a separate rule.
384
-12-
The remaining distinction between the Military and Federal rules is the
military treatment of regulations, o r d e r s , treaties and other official
documents.
It is beyond challenge t h a t , because of the myriad official documents affecting
every aspect of military s e r v i c e , the military courts must have some rule allowing these documents to be considered by courts-martial
in an expeditious manner.
If formal proof of all such documents was required, courts-martial would undoubtedly become so lengthy and complex that they would lose much of their effectiveness.
On the other end of the spectrum is the military fiction that every member of a
particular service knows, as a matter of common knowledge, the contents of every
39
regulation of that service.
Because the regulations are matters of common know-
ledge, they are, therefore, proper subjects for judicial notice.
ever, has presented some practical difficulties.
This t h e o r y , how-
For example, when the regulation
40
41
judicially noticed by the trial court is less than service-wide,
or classified,
and is not included in the record of the trial, appellate courts have no way of
knowing
tion.
whether the offense charged is in fact a violation of the subject regulaThe end result of this p r a c t i c e , at least as far as the Army Court of Mili43
tary Review is concerned, is dismissal of the charged offense.
As previously
stated, the Military Rule on judicial notice has recognized that some of the items
listed as proper subjects for judicial notice should be supported by a modified
offer of p r o o f . ^
This is apparently an admission that some of these items are not
actually amenable to "pure" judicial
notice.
The best solution to this situation would seem to be the adoption of the
Federal R u l e , which allows judicial notice of items that are truly within general
knowledge or capable of ready determination.
This rule would allow judicial
of orders and regulations rightly within its parameters.
notice
Then the military could
adopt a supplemental and separate rule allowing the trial court to consider other
regulations and orders if they are simply offered for inclusion in the record.
This would allow ease of judicial administration, full appellate review, and
6 385
removal from the rule on judicial notice a practice that is actually nothing other
than a lower standard for the admissibility of evidence.
III.
Presumptions in Civil Actions and Proceedings (Rules 3 0 1 , 302)
As is readily apparent from the title of this s e c t i o n , it is inapplicable to
courts-martial and need not be considered for adoption.
IV.
Relevancy and Its Limits (Rules 401-411)
The definition of relevancy provided by Federal Rule 401 is basically in
agreement with the military definition.
45
Both definitions have incorporated the
previously separate terms of "relevancy" and "materiality" under the single concept
46
of relevancy.
Federal Rule 402 states the general proposition that only relevant
evidence is admissible.
T h i s , t o o , is entirely in accord with the Military
Rule.^
Federal Rule 403 notes that otherwise relevant evidence may be excluded if its probative value is outweighed by p r e j u d i c e , confusion or waste of time.
There is no
precisely comparable Military R u l e , but military practice is apparently quite similar.
The Military Rule does s a y , for e x a m p l e , that the military judge may limit the number
of witnesses called by each party "if 48
it appears that the testimony of the excluded
witnesses would be merely cumulative".
This provision is clearly meant to exclude
relevant evidence that would be a waste of time.
Additionally, military case law
more than twenty years ago provided that relevant evidence may 49
be excluded when its
potential prejudicial impact far outweighs its probative value.
That rule is
still good law today a n d , in f a c t , the most recent military case to so hold cites
Federal Rule 403 in support of its conclusion.
50
T h e r e f o r e , it appears that the
military could adopt Federal Rules 401-403 without significantly altering current
51
practice
and with the added benefit of obtaining a concise consolidation of cur-
rent Military Rules and case law.
Federal Rules 404 and 405 concern the special problems of relevancy encountered
under
6
the general concept of character evidence.
386
Rule 404 (a) and the Military Rule
183
on the same subject
agree that character evidence cannot be introduced simply to
show that the accused is "a bad person" and therefore probably did what he is
charged with doing.
The remaining subdivisions of Federal Rule 404 list the except-
ions to the general rule just stated.
Rule 404 (a) (1) states that an accused may
offer evidence of a pertinent trait of his character, and if he does, the prosecution
may rebut the same.
In this r u l e , it should be noted that the character evidence
the accused may offer is limited to traits of character pertinent to the offense
charged.
53
T h u s , evidence of good character in general may not be offered.
54
This
55
limitation is a variance from the Military Rule
w h i c h , like the Federal Rule limits
evidence of specific character traits to those pertinent to the offense charged,
but goes further and allows evidence of the accused's
"general character as a m o r a l ,
56
well-conducted person and law abiding citizen".
Additionally, although courts-
martial are bifurcated trials, it is clear that evidence of general good character
57
is admissible on the m e r i t s , as opposed to only in the sentencing stage of the trial.
The principal purpose of the military variation
is to allow the introduction of the
CO
accused's military record into evidence.
In support of the military variation,
military courts often cite Professor Wigmores statement that "evidence of good
soldierly character is even stronger than the customary evidence of good general
character" . ^
Because adoption of the Federal Rule would change the Military R u l e , the
question whether the change would be detrimental to the military justice system
must be examined.
As stated, the Military Rule rests primarily on the desire of
military courts to be able to consider the prior military record of the accused.
In this regard, no one would advocate that an exemplary record of prior service
to one's country is immaterial or irrelevant, but the question is -- relevant to
what?
The better rule would seem to be that adopted by the Federal Rule and the
vast majority of the states that evidence of general good character is not relevant
in determining whether or not a person committed a specific offense.
387
It should be
remembered that these civilian rules, as does the Military Rule , allow evidence
of a pertinent character trait.
rattier incongrous r e s u l t s . ^
common experience.
The Military Rule as it now stands can lead to
A d d i t i o n a l l y , the rule does not completely mesh with
Without detailing the cases, it can be noted that a number of
persons of advanced rank have been found guilty of specific offenses.
Presumably,
all of the persons received promotions because of their excellent military records.
Therefore, evidence of good soldierly character in general cannot be said to
eliminate the possibility of criminal conduct in all c a s e s . ^
It would seem to
follow that a person's guilt or innocence on a specific offense should be adjudged
solely on evidence, character and o t h e r w i s e , related only to that offense.
This
does not mean, however, that the past military proficiency of the accused has no
place in a court-martial.
Instead, it is submitted that past instances of fidelity,
c o u r a g e , etc., should be properly received in the sentencing phase of the trial,
but not during the findings phase unless they are pertinent to the specific offense
charged.
62
Adoption of the Federal Rule would accomplish that result.
CO
Federal Rule 404 (a) (2) comports with the Military Rule
in allowing evidence
of the character of the alledged victim of the crime to be introduced in certain
cases.
Federal Rule 404 (a) (3) merely states, as does the Military R u l e , 6 ^ that
65
evidence of the character of a witness is governed by a separate set of rules.
Federal Rule 404 (b) deals with one of the most frequently litigated questions
of relevancy — evidence of prior acts of misconduct by the accused.
Both the
Federal Rule and the Military R u l e ^ state the general rule of exclusion for such
evidence, and both follow the general rule with an itemized list of exceptions.
Although the terminology of the listed exceptions varies slightly, and the military
exceptions include a "catch-all" e x c e p t i o n , ^ the gist of the respective rules is
identical and adoption of the Federal Rule would not change military p r a c t i c e . ^
Federal Rule 405 provides the methods by which character evidence, if admissible
under Rule 404, may be proved.
Both the Federal R u l e ^ and the Military R u l e ^ allow
38 8
-in-
proof of character by both reputation and opinion evidence.
Federal Rule 405 (a),
however, goes one step further than the Military Rule by specifically stating that
"on cross-examination, inquiry is allowable into relevant specific instances of
conduct".^
As s t a t e d , this portion of the rule has no military counterpart, but
it is difficult to understand why there would be no such rule.
By allowing opinion
evidence of character, the Military Rule surely contemplates that the person testifying will be cross-examined.
If s o , the only effective cross-examination
is to inquire into the basis for the w i t n e s s e s ' opinion.
available
Because opinion evidence,
72
as opposed to reputation evidence, must be founded on personal knowledge,
the
only way the witness could form an opinion would be to observe specific acts.
It
naturally follows that the only effective method of cross-examination available is
inquiry into the specific acts on which the opinion is based.
already the military practice.
Perhaps this is
If it is n o t , it should b e , and adoption of the
Federal Rule would make the acceptance of this practice clear.
Federal Rule 405 (b) provides that when the character or a character trait of
a person is an essential element of the offense charged, proof may be made of
specific instances of conduct.
This subsection of the Federal Rule also has no
military counterpart, but here the reason for the absence of a Military Rule is
more easily explained than s o m e .
The Federal Rule is a very limited o n e .
As it
states by its express terms, it is only operative when character is an issue.
And
it further notes that character is in issue only when character or a character
trait is an essential element of the charge.
73
essential element vary in description,
Offenses in which character is an
but they all have in common the fact that
none of them are prosecuted in courts-martial.
Rule is easily explained because such a rule
Hence, the absence of a Military
is unnecessary.
On the other hand,
adoption of the Federal Rule would provide no 74
hinderance to military practice, and
m i g h t , in fact, be useful at some future date.
Federal Rule 406 allows evidence of habit and routine practice.
habit is also allowed under the Military Rule
3 S 9
75
Evidence of
and there appears to be no conflict
between the t w o . ^
Federal Rules 407 (Subsequent Remedial Measures); 408 (Compromise
and Offers to Compromise); 409 (Payment of Medical and Similar Expenses); and 411
(Liability Insurance) all relate only to civil trials and a r e , therefore, unnecessary
for military practice.
,
. ,
;
_
The final Federal Rule.that is pertinent to military practice is Rule 4 1 0 .
The subject of Rule 410 is the admissibility of withdrawn pleas of guilty and nolo
contendere. Federal Rule 410 provided, when enacted, that it would be superceeded
•fi Pl v
'
by amendment to the Federal Rules of Criminal Procedure. Therefore, Federal Rule
of Criminal Procedure 11 (e) (6), as amended in 1975, apparently governs.
The
Federal Rule as it presently stands provides that withdrawn pleas of guilty or nolo
contendere or offers to plead guilty or nolo contendere to the crime charged, or
statements made in connection with such pleas or offers are not admissible against
the person who made the plea or offer.
The plea of nolo contendere is not recognized
in military c o u r t s ^ and it follows that there is no Military Rule concerning it.
78
The nolo plea
is, of course, beneficial to both the accused and the government
and there would seem to be no reason for the military to avoid its adoption.
The other provisions of Federal Rule 410 (Federal Rule of Criminal Procedure
11 (e) (6)) concerning the inadmissibility of withdrawn guilty pleas and offers
to plead guilty are consistent with military practice although no Military Rule
covers those particular subjects.
The United States Supreme Court held in 1927
9
MilitaryM^-1
—-r-"-^that withdrawn pleas of guilty were not admissible'' and
- V 7 the
f~ J r Court
/'- - 1 cofr /-«'
^.j^ui-^Appeals also held that, as the Federal Rule provides, statements made in connection
81
with such withdrawn pleas are also inadmissible.
It also appears that the mili-
tary does not sanction the admissibility of offers to plead
82 guilty when the accused
has finally elected to go to trial on a not guilty plea.
Because military prac-
tice does not conflict with the Federal R u l e , it would be a great benefit to military practi f oners to have their rules of practice codified and clearly presented,
and this could be easily accomplished by adopting the Federal
-12-
Rule.
V.
Privileges (Rule 501)
As originally promulgated by the Supreme Court, the Federal Rules contained
83
thirteen specific rules on recognized privileges.
H o w e v e r , Congress deleted the
specific rules and enacted a single rule that leaves the question of privileges to
the Constitution and "principles of common law as they may be interpreted by the
courts of the United States in the light of reason and experience". A rule that
84
general
does n o t , of c o u r s e , conflict with the Military Rule
on the same sub85
ject.
Neither does it provide the concise codification helpful to practicioners.
If the military chose to adopt the Federal Rule, the best solution would appear to
be
to "fleshby out"
the Federal
Rule by adding those specific privileges
recognized
military
c o u r t s .86
VI.
currently
Witnesses (Rules 601-615)
This rather lengthy subsection of the Federal Rules treats the competency of
witnesses, impeachment of witnesses and specific related subtopics.
Rule 601 states
the general rule of competency in criminal trials to be that every person is competent to be a witness unless declared incompetent by a subsequent rule.
This general
rule was intended to be a "general ground-clearing" in an effort to abolish a number
of common law rules of incompetency that had proved to be unworkable or unjustified.
The Military Rule, though not stated as concisely as the Federal Rule, appears to
88
reach the same result.
The approach taken by the Military Rule is to list several
catagories of incompetency at common law and announce that these former grounds of
incompetency are merely proper factors in weighing credibility o r , in the case of
the marital relationship, a question of privilege.
Federal Rule 602 is the first exception to the general rule of competency.
It provides that, to be competent to testify, a witness must have personal
of the facts to which he t e s t i f i e s .
knowledge
The rule further provides an exception for
6 391
expert opinion testimony.
Commentary to the rule also makes clear that the require-
ment of personal knowledge is to be distinguished from the prohibition
against
89
hearsay.
The Military Rule on this same subject is entitled Testimonial
Knowledge
It also requires, in general terms, that the testimony of a witness be based on personal knowledge of the facts in question.
Federal Rule 603 requires that every wit-
n e s s , before testifying, be administered some form of oath or affirmation that will
"awaken his conscience and impress his mind" with his duty to testify truthfully.
The flexible nature of the requirement is meant to allow different verbal forms
of oaths or affirmations
depending on the age, religion, or other peculiarity of
the witness at hand. 91 This is in complete harmony with the Military Rule w h i c h ,
though providing a form oath that may be used,
92
also provides that the form may
be modified to include other terms recognized by a particular witness 04 obligating
93
him to speak the truth.
Federal Rule 604 requires, as does the comparable Mili-
94
tary R u l e ,
that interpreters are also to perform their duties under oath.
Whereas adoption of the previously considered Federal Rules regarding witnesses
would work no significant change in current military practice, the flat prohibition
against judges serving as witnesses in the trial over which they are presiding provided by Federal Rule 605 would constitute a change.
Not only is the Federal Rule
m a n d a t o r y , but it also provides that the judge's incompetency as a witness cannot
be waived by lack of objection or otherwise.
The Military Rule, on the other hand,g
states only that the military judge may not serve as a witness for the prosecution,
and even that disqualification may be waived by failing to o b j e c t . ^
Paradoxically,
although a military judge who is called during trial as a defense witness is not
disqualified to continue presiding at that trial, the Military Rule allowing pretrial bechallenges
against asa judge
lists for
the challenge.
possibility
the judge
will
a witness for
for cause
the defense
one ground
97 that
Military
case
qo
gg
law,
and for that m a t t e r , the Military Rule itself",
indicate that it will some-
times be difficult to determine whether the presiding judge is being called as a
6
392
witness for the prosecution or a witness for the defense.
The absolute prohibition
of the Federal Rule is intended to eliminate just such line drawing, albeit in a
different c o n t e x t , a n d
current Military Rule.
seems to be a much more satisfactory solution than the
As the commentary to the Federal Rule indicates, 1 ^* a number
of difficult problems arise when the presiding judge takes the stand:
objections?
Who compels him to answer?
Who rules on
Adoption of the Federal Rule would provide
an effective solution to these problems in courts-martial.
Federal Rule 606 concerns the eligibility of a juror to act as a witness in a
case in which he is sitting.
Rule 606 (a) adopts a position similar to that taken
in Rule 605 concerning judges and imposes an absolute prohibition on jurors serving
as witnesses in a case in which they are sitting.
The Military Rules on jurors
also track the Military Rules on j u d g e s , i.e., a juror may not serve as a witness
for the prosecution during trial,
102
and the possibility that he may be called as
103
a defense witness is ground for challenge for cause at vior dire.
Although the
procedural problems to be considered when the presiding judge serves as a witness
do not apply when a sitting juror does the same, the prohibition of the Federal
Rule still seems superior.
First, as in the case of j u d g e s , it removes the necessity
for characterization of each bit of testimony as for the prosecution or for the
defense.
Second, it preserves the appearance of an impartial forum which should be
the goal of all court proceedings.
Federal Rule 606 (b) provides a rule on the collateral question of whether a
juror may serve as a witness to impeach his own verdict.
As Professor McCormick's
text on evidence indicates, this particular question is quite difficult to resolve
104
and has led to sharply conflicting resolutions in different jurisdictions.
The
solution chosen by the Federal Rule is to prohibit jurors from testifying on internal
deliberations, impressions or statements made by m e m b e r s , but to allow testimony on
whether extraneous prejudical information came to the jury's attention and other
improper outside influences.
6
The Federal Rule thus attempts to strike a middle
393
ground between the traditional rule that a juror cannot impeach his own verdict and
the necessity for some method of impeachment of a verdict arrived at by improper
means.
There is no Military Rule as such on this s u b j e c t , but the Court of Military
Appeals has struggled with the question on occasion.
In that court's latest pro-
nouncement on the s u b j e c t , the holding seems to be that the military will follow
105
the traditional rule.
A close reading of that c a s e , however, reveals some dicta
to the effect that the court might adopt the "improper outside influences" exception
if the proper case presented i t s e l f . T h e r e f o r e , adoption of the Federal Rule
would not seem to be inimical to military practice a n d , in fact, its adoption
might well be a welcome resolution to this age-old q u e s t i o n .
Federal Rule 607 rejects the traditional rule that a party cannot impeach his
own witness.
As the commentary to the rule indicates, the traditional rule is
based on the false premise that a party freely selects his witnesses in each c a s e . " ^
An increasing recognition of the discredited basis for the traditional rule has led
those 1jurisdictions
that have not completely abandoned it to adopt numerous exceptno
ions.
The Military Rule follows the latter tack by retaining the traditional
109
rule and providing exceptions to it.
It is submitted that the Federal Rule pro-
vides the better solution and should be adopted by the military.
Federal Rule 608 allows for impeachment of witnesses by evidence of their
character and conduct.
The Federal Rule, as does the Military R u l e , ^ allows an
attack on the veracity of a witness by either reputation or opinion evidence.
Both
rules also preserve the traditional requirement that a witness's character cannot
be bolstered until it is attacked.
Under the Federal R u l e , specific instances of
conduct may not be shown by extrinsic evidence to impeach the credibility of a
witness with three exceptions.
One exception is conviction of crime, which is
given separate treatment in Federal Rule 609.
Rule 608 itself are:
(1)
The two exceptions recognized within
in the discretion of the c o u r t , the witness may be cross-
examined on specific instances of his own misconduct; and (2) the basis for his
.^O/J
-12-
offered evidence on the veracity of another witness may be tested by "have you
heard" or "did you know" type questions.
The Military Rule does not contain these
exceptions for specific instances of conduct, but as was discussed in the section
of this paper considering Rule 404 on general character (which should be carefully
distinguished from Rule 608) the Federal Rule provides a more serviceable and practical concept and should be adopted by the military.
Impeachment by evidence of conviction of crime is the subject of Federal Rule
111
609.
Both the Federal Rule and its military counterpart
rather lengthy treatment.
give this subject
Although the terminology used by the two rules varies
to a great extent, the rules are actually much more similar than they are different.
The Federal Rule, for e x a m p l e , lists two types of conviction that can be used for
impeachment:
(1) a crime punishable by imprisonment in excess of one year; or (2)
a crime involving dishonesty or false statement.
The Military Rule, on the other
hand, purports to allow the use of convictions of only crimes involving moral turpitude.
On further examination, however, crimes involving moral turpitude are
basically defined as those involving a punishment of more than one year and those
involving deceit or false statement.
Part (b) of Rule 609 provides a significant
departure from the Military Rule as it is stated in the M C M .
Rule 609 (b) provides,
in effect, that a conviction less than ten years old is presumptively admissible on
the issue of credibility, whereas a conviction more than ten years old is presumptivily inadmissible for the same purpose.
The Military Rule as stated in the MCM
provides no time limitation, but the Court of Military Appeals has adopted the time
112
limitation of the Federal R u l e , if not in fact adopting Federal Rule 609 in toto.
Both the Federal Rule and the Military Rule allow the prior conviction to be proved
either by public record or by eliciting the fact from the witness.
Neither rule
allows evidence of a juvenile adjudication except in very limited instances.
Simi-
larly, neither rule allows the use of a conviction that has been set aside, annulled
or pardoned.
One final difference between the rules does arise, however, concerning
the admissibility of a conviction undergoing appeal.
395
The Military Rule states that
6 19
such a conviction is inadmissible for impeachment, and the Court of Military Appeals
has recently held that the rule must be followed on pain of reversal.
113
Conversely,
the Federal Rule, based on the premise that judicial proceedings ought to be correct
114
in the first instance,
allows a conviction on appeal to be admitted while also
allowing pendency of the appeal to be introduced as a qualifying
consideration.
When the Federal Rule is read, as it must b e , in light of the command of Federal
Rule 403 to guard against undue prejudice, the difference between the Military and
Federal Rules in practical application is probably m i n i m a l .
If the difference be-
tween the two requires selection of the better o n e , it is certainly to be hoped
that the rationale on which the Federal Rule is b a s e d , i.e., that the court was
right the first t i m e , is the sounder o n e .
Federal Rule 610 prohibits evidence of religious beliefs or opinions to impair
or enhance the credibility of a w i t n e s s .
The military has no similar rule n o r ,
apparently, have the military appellate courts considered the issue.
The Federal
Rule is intended to serve the limited function of insuring that the capacity of
a witness to speak the truth vel non will not be determined on the basis of his
religious beliefs or lack thereof.
The rule is n o t , however, intended to foreclose
115
inquiry into religious affiliation for the purpose of showing interest or bias.
Adoption of this rule by the military would certainly not be harmful to military
practice and would seem to be in keeping with the command of the first amendment
to the United States Constitution to allow the free exercise of religion without
penalty of any k i n d . " ^
Order of proof, scope of cross-examination, and leading questions are the
subjects of Federal Rule 611.
A comparison of the Federal with the Military Rules
on the same subjects indicates little, if a n y , difference between them.
The Mili-
tary Rules, as does Federal Rule 611 (a), vest discretion in the court to control
7
the mode and order of presentation
118 of proof,''''''' and to protect witnesses from
embarrassment or degradation.
S i m i l a r l y , both Rule 611 (b) and the corresponding
Military Rule attempt to limit the scope of cross-examination to matters inquired
into on direct and the credibility of the witness.
119
Both also allow the j u d g e ,
120
in his discretion, to depart from the stated general rule.
Rule 611 (c) and
the Military Rules on leading questions state that such questions should only be
used on direct examination when 121
necessary to develop the testimony of a witness with
less than full mental c a p a c i t y ,
and both allow the use of leading questions on
cross-examination
122
and in the case of a hostile w i t n e s s .
123
Federal Rule £12 states t h a t , subject to the provisions of the Jencks A c t ,
if a witness, for the purpose of testifying, uses a writing to refresh his memory
either before testifying or while on the stand, such writing may be made available
to the adverse party for inspection and use on cross-examination.
Military practice,
when the rules and case law are pieced together, appears to coincide with the Federal
Rule.
It can be stated with certainty that the Jencks Act applies to court-martial
proceedings,
124
and the Military Rule also clearly follows the traditional
view
that writings used to refresh recollection while on the stand must be made available
125
for inspection and cross-examination of the witness.
The military requirement
for the production of a writing used by any w i t n e s s , either government or defense,
before trial to refresh his memory is126not as clear, but at least two cases have
held that such a requirement exists.
Therefore, adoption of the Federal Rule
would apparently not significantly alter military practice and it would provide
the additional benefit of codifying the applicable provisions in one easily accessible place.
Federal Rule 613 concerns the use of prior inconsistent statements by the
witness as a method of impeachment.
The only difference between the Federal and
Military Rules on this subject appears to be in the foundation required for the
use of inconsistent statements.
The Federal
Rule disposes of the useless and
127
discredited rule of the Queen's C a s e ,
and also relaxes the traditional
require-
ment that the attention of the witness be directed to the time and place of making
397
in
of the statement in favor of simply allowing the witness to explain the inconsist129
encies.
It is highly doubtful that the passing of the traditional
requirements
in favor of a more modern and practical method of laying foundation would be mourned
by military practitioners.
Federal Rule 614 makes provision for the calling and interrogation of witnesses
by the court.
The comparable Military Rules are consistent with the Federal Rule
130
131
in allowing the court both to call
and interrogate
witnesses. Further, both
132
rules state that either party may cross-examine witnesses thus called.
The rule of evidence commonly known as "The Rule" is provided by Federal Rule
615.
A1thought the Federal version simply provides for exclusion of witnesses
from the courtroom as a matter of right while other witnesses are testifying instead of including the customary admonition to excused witnesses not to discuss
133
the c a s e , adoption of the Federal Rule would cause no change in military practice.
VII.
Opinions and Expert Testimony (Rules 701-706)
The first rule in this section, Federal Rule 7 0 1 , concerns the use of opinion
testimony by witnesses other than experts.
Rule 701 is basically a codification
of the "shorthand rendition rule" which authorizes lay opinion rationally based on
the perception of the witness where such opinion is "helpful to clear understanding
of his testimony or the determination of a fact in issue".
The rule represents no
apparentintoxication,
change in military
which
permits
opinion
on such134subjects as
speed,
sex and practice
age of the
speaker
and lay
similar
subjects.
Federal Rule 702 is the first of the rules relating to expert testimony.
Federal Rule, as does its military counterpart,
expert on matters outside common knowledge.
135
The
allows the opinion of a qualified
The bases of expert opinion testimony
136
under both Federal Rule 703 and the comparable Military Rule
cal.
Both allow the basis to b e
appear to be identi-
personal observation (as in the case of a treating
p h y s i c i a n ) , presentation at trial (including the technique of the hypothetical
question), or the study by him of the type of reports customarily relied on in
137
the practice of the expert's specialty.
Federal Rule 704 abolishes the histori-
cally troublesome rule that opinion testimony cannot be admitted if it goes to the
ultimate issue to be decided by the trier of f a c t .
The current revision of the
Military Rules doe^not include the "ultimate issue" r u l e , so there would seem to
138
be no objection to joining the modern trend of most jurisdictions
by adopting
a formal declaration of the old rule's nonexistence.
139
Federal Rule 705 is completely consistent with the Military Rule
both in
allowing an expert to testify without disclosure of the underlying facts and data
140
supporting his o p i n i o n , and in requiring such disclosure on cross-examination.
Federal Rule 706 allows the appointment and compensation of expert witnesses by the
court. The rule is intended to offset the tremendous advantage which
141 may be gained
in civilian trials by the party who can afford the "best" expert.
Because the
experts used in courts-martial are either members of the military or civilian experts
142
whose fees are paid by the government,
adoption of this particular Federal Rule
by the military would seem unnecessary.
VIII. Hearsay
The section of the Federal Rules concerning hearsay is, not unexpectedly,
both lengthy and complex.
Additionally, this section presents several
departures
from the traditional treatment of hearsay which w o u l d , if adopted, also vary current
military practices.
Federal Rule 801 is definitional and the definitions of "hear-
s a y " , "declarant" and "statement" provided therein are standard and coincide completely
with the Military R u l e . * ^
The departure from tradition (and the Military Rules)
begins with Rule 801 (d) which simply excludes admissions by parties and some prior
inconsistent and consistent statements by witnesses from the definition of hearsay.
144
Confessions and admissions are treated by the m i l i t a r y ,
as well as in most
jurisdictions, 145 as an exception to the hearsay rule rather than not hearsay in
399
-12-
the first instance.
In either case, of c o u r s e , the end result is the same, and a
change from the "exception" classification to the "not hearsay" classification
would not present any major difficulty for the m i l i t a r y .
It should be noted, how-
e v e r , that Rule 801 (d) (2) also adopts the W i g m o r e - M o r g a n * ^ approach of lumping
together confessions or admissions made by both criminal defendants and civil litigants in a single rule.
It is beyond the scope of this paper to explore in depth
the question w h e t h e r such a combination is w i s e , but it should be stated that other
147
writers have questioned that approach.
In light of the questionable effective-
ness of a combined r u l e , and the additional fact that the military has no need for
the civil aspects of the rule, it is suggested that only a modified version of Rule
801 (d) (2) should be adopted by the m i l i t a r y .
Federal Rule 801 (d) (1) would produce even more significant changes in the
current Military Rules and practices.
Under the Federal R u l e , for example, deposi-
tions are not considered hearsay and hence are freely admissible.
The current
Military Rule, on the other hand, allows the use of depositions as an exception
148 to
the hearsay rule only when the deponent is unavailable to testify in person.
The Federal Rule would also allow a prior inconsistent statement given under oath
to be introduced on the merits, whereas the Military Rule only allows inconsistent
statements to be used for purposes of impeachment unless the statement qualifies
as an admission or c o n f e s s i o n . ^ 9
Rule 801 (d) (1) (B) similarly elevates state-
ments meeting the recent fabrication test from the status of mere corroboration to
non-hearsay available to prove the truth of the matters stated therein.
This is
also a departure from the military requirement that consistent statements must
150
meet some exception to the hearsay rule to become admissible on the merits.
The Federal Rule's reference to inconsistent statements made under oath at a prior
judicial proceeding as not hearsay
also
appears to make inroads
into the traditional
, ... L,
r » U . <= » Jjl I t ^ t C O ^ U i l l l l
;.j. ,
<t( 1--./J
'
'
• 151
"former testimony" exception^is itself retained in the present Federal Rules.
r
t
The departures from both the traditional and military practice by this subsection
400
99
of the Federal Rules is quite significant, and the wisdom of treating prior consistent and inconsistent statements as non-hearsay has been questioned by other writers.
152
The experience of federal civilian c o u r t s , to which these rules also mandated a de153
parture from prior practice,
should be carefully evaluated before adopting these
wholesale changes as "changes for the better".
Federal Rule 802 is a simple statement that hearsay is not admissible except as
provided by the exceptions stated in the Federal Rules or other rules prescribed by
the Supreme Court or Congress.
Federal Rule 803 begins what might be called the heart of the hearsay rule:
the exceptions to it.
Rule 803 describes twenty-four exceptions to the hearsay
rule that are applicable whether or not the declarant is available at the proceeding
where offered.
Rule 803 (1) provides an exception for statements describing present
sense impressions. Neither the military nor the 154
majority of other jurisdictions
have adopted this exception to the hearsay rule,
although a strong argument can
be made that such statements are at least as reliable, if not more s o , as spontaneous
exclamations.
155
The adoption of the present sense impression exception by the
156
military should be supported.
157
the M C M ,
A number of w r i t e r s ,
including the drafters of
have recognized that the term res gestae is incapable of definition
and is often used to describe a variety of utterances both within and without the
hearsay rule.
Federal Rule 803 (2) thus uses the term excited utterance to describe
the actual exception to the hearsay rule. The
158 military chose the title spontaneous
exclamation to describe the same exception.
The two rules are very similar and
adoption of the Federal Rule would not change military practice.
803 (3) is also quite similar to the Military Rule
159
Federal Rule
allowing a hearsay exception
for statements of then existing m e n t a l , emotional, or physical condition.
Neither
the Federal nor the Military Rule allows a statement of memory or belief to prove
the fact remembered under this exception insofar as the Federal Rule relates to
criminal t r i a l s . 1 6 0
Federal Rule 803 (4) extends the exception for statements of
401
-23-
present physical condition just discussed to statements regarding the cause of the
physical condition when made to a physician for the purpose of diagnosis or treatment.
The principal significance of this extended exception seems to arise in trials
161
to determine civil liability.
Thus, it would seem to be unnecessary in military
practice.
The exception to the hearsay rule for recorded recollection is contained in
Federal Rule 803 (5).
The Federal Rule is an attempt by the drafters of the rules
to consolidate the traditional exceptions distinguished by whether the witness has
forgotten the facts recorded or only needs to refresh his memory.
The adoption of
this rule by the military would present only a minor change to the present Military
162
Rule
which notes the distinction between the two types of m e m o r a n d a , but provides
them substantially similar treatment.
The change which would occur would undoubted-
ly be welcomed by the practioner who has struggled with the hypertechnical and often
incomprehensible distinctions between recollection recorded and the use of memoranda
to refresh recollection.
The traditional "business entry" exception to the hearsay
rule is provided in Federal Rule 803 (6) under the heading of "records o f regularly
conducted activity."
The federal statement of the rule appears to be a good one
that could be easily reconciled with military practice under the present Military
Rule. 163 Federal Rule 803 (7) confronts the often perplexing problem of negative
proof. Under Rule 803 (7) a party may offer evidence of the absence of business
164
entry if such proof appears trustworthy.
The comparable Military Rule
also
makes provision for showing the non-existence of an entry where it should have been
made in the regular course of business and hence the Federal Rule would work no
change in military p r a c t i c e .
Federal Rule 803 (8) is the familiar "official records"
exception to the hear165
say rule.
Although this rule differs the Military Rule
in some w a y s , e.g., the
Federal Rule has a special subpart for civil actions and the Military Rule expressly
encompasses foreign r e c o r d s , the gist of the two rules seems identical.
402
O/l
It should
be noted, for example, that both rules exclude the reports of law enforcement
officials made principally with a view toward prosecution from their c o v e r a g e . 1 6 6
Federal Rule 803 (10) provides a negative proof provision for official
records
similar to that provided for business entries and is matched by a similar Military R u l e . 1 6 ^
Federal Rule 803 (9) provides a special exception for records of
vifctl statistics — birth certificates, death certificates, etc., which under
current military practice would probably be classified as official records.
There-
fore, it appears that adoption of Rule 803 (9), Rule 803 (10), and a modified version of Rule 803 (8) would result in l i t t l e , if a n y , change to current military
practice.
Federal Rules 803 (11), (12) and (13) provide hearsay exceptions for various
religious and family records.
1CO
art
dictions,
These exceptions are well-recognized in many juris-
but^without parallel in military practice.
Most likely, the lack of
Military Rules in these cases indicates a lack of need for such exceptions in the
purely criminal context of courts-martial.
The same can probably be said of Rules
803 (14) and (15) concerning records of documents affecting an interest in property,
Rule 803 (16) concerning statements in ancient documents, and Rule 803 (17) on
market reports and commercial publications.
As has been noted previously, in the
absence of a contrary Military Rule courts-martial may recognize Federal Rules
169
under the provisions of paragraph 137 of the M C M .
Presumably, the authority
of paragraph 137 could be used to pick up any of these exceptions if the need
arose in a criminal context and express adoption of these primarily civil exceptions
may be more cumbersome than necessary for military practice.
Federal Rule 803 (18) provides what appears to be a noteworthy change to
current military practice by allowing statements contained in learned treatises
to be considered on the merits "to be extent called to the attention of an expert
witness upon cross-examination or relied upon by him in direct examination".
is no military exception to hearsay for learned treatises.
There
Instead, the military
has followed the great weight of a u t h o r i t y 1 ^ 0 by simply allowing the use of such
403
specialized books and papers for the purpose of cross-examining the expert w i t n e s s . ^
A number of writers have called for the admissibility of learned treatises as an
172
exception to the hearsay rule
of their arguments.
and the Federal Rule recognizes the correctness
However, the Federal Rule also recognizes the danger that a
treatise may be misunderstood or misapplied by a lay jury and therefore limits
admissibility to those parts of the treatise read, and hopefully explained, while
the witness is on the stand.
In short, the jury is not allowed to take the treatise
itself into the jury room as a piece of evidence.
This "middle of the road" approach
adopted by the Federal Rule appears to be a good one that is worthy of acceptance
into military practice.
The subject of Rule 803 (19) is reputation concerning family history, one of
173
the oldest hearsay exceptions on the books.
Despite its age, however, its lack
of application in criminal trials has not necessitated its inclusion in the military exceptions to the hearsay rule.
reputation concerning boundries.
The same can be said for Rule 803 (20) on
Doubtless military practice can safely continue
without the adoption of these venerable rules.
Federal Rule 803 (21) allows an
exception to the hearsay rule for reputation evidence on character.
Clearly repu-
tation testimony is hearsay in its purest f o r m , but as previously discussed the
military is in keeping with most jurisdictions in allowing reputation evidence
174
175
regarding the character of the accused
and the veracity of witnesses.
The use of previous convictions has also been previously discussed in this
paper, but it must be noted that the hearsay exception provided by Federal Rule
803 (22) would work a significant change in military law.
Current military practice
allows the use of previous convictions to impeach the a c c u s e d1^yoor a w i t n e s s , * ^
or at the sentencing stage of the trial to enhance punishment.
That the federal
exception is much broader is indicated by the language allowing a previous felony
conviction to be introduced "to prove any fact essential to sustain the judgment,
but not including, when offered by the Government in a criminal prosecution for
6
404
purposes other than impeachment, judgments against persons other than the accused".
No doubt there is a valid basis for the Federal Rule's position that the jury should
179
be allowed to consider a prior felony conviction "for what it is worth"
rather
than rejecting it completely if res judicata doesn't a p p l y , but the rule also seems
to encourage "bad guy" convictions.
It is submitted that the military should
approach the adoption of this particular hearsay exception with extreme caution if
at all.
Federal Rule 803 (23) provides a hearsay exception for judgments on several
of the matters discussed in previous exceptions, i.e., personal and family history
and boundries.
The necessity of such an exception in military criminal
would appear to be almost nil.
practice
Rule 803 (24), however, is an exception that would
be highly applicable to military practice and which would undoubtedly produce substantial controversy among those considering its adoption.
general exception is rather interesting.
The history of this
At one stage of the evolutionary
process
180
of the Federal Rules this was the only exception to hearsay stated.
In s u m ,
the idea at that time was to admit any statement the court found to contain the
requisite degree of trustworthiness as an exception to the hearsay rule.
On fur-
ther consideration, however, the Supreme Court reverted to listing exceptions
181 and
left the "general trustworthiness" exception as a broad residual provision.
gress left the general exception but "felt that
182 an overly broad residual
exception could emasculate the hearsay rule"
Con-
hearsay
so they added some restrictions.
To come in under the present version of Rule 803 (24) the statement must not only
be trustworthy, but also:
(1) on a material point; (2) more probative on the point
than any other evidence the proponent could reasonably obtain; and (3) in line with
the purposes of the rules and the interests of justice.
If these express
limitations
are followed, and the spirit of the exception as indicated by the commentary to it
is not violated, Rule 803 (24) could be a valuable addition to military law.
If
not carefully controlled, however, this exception could clearly, as its congressional
405
-36-
29
detractors feared it w o u l d , "inject too much uncertainty"
183
into an already uncer-
tain area of the law of evidence.
Federal Rule 804 contains five exceptions to the hearsay rule that are differentiat^from those contained in Rule 803 by the fact that the availability of the except
ions in Rule 804 is conditioned on showing the unavailability of the declarant.
804 (a) contains the federal definition of "unavailability of a witness".
Rule
The defi-
nition is a good one which could be easily adopted for use in the military by simply
including military necessity as a proper reason for non-availability.
Adoption of
the federal definition would be beneficial to the military if for no other reason
than to eliminate the confusion inherent in using, as the military now does, three
different definitions of unavailable for the three military exceptions to hearsay
requiring such a showing.
Under current military practice, if dying declaration
is the exception, the declarant must be dead.
184
If the exception is former testi-
m o n y , a rather standard definition of unavailability is used.
185
In the case of a
deposition, the standard definition is modified to include a "beyond a 100 mile
radius" criterion.
185
In addition to providing a single definition of unavailability
the federal definition also codifies the holding of the Court of Military Appeals
that a declarant is not unavailable if the proponent of his statement procured his
187
unavailability.
Former testimony is the hearsay exception provided for by Rule 804 (b) (1).
The Federal Rule, if adopted by the m i l i t a r y , would combine the presently separated
188
189
military exceptions for former testimony
and depositions.
Adoption of the
Federal Rule would not change the gist of the current Military Rules, however, and
it should be noted that the Federal Rule retains the requirement that the party
against whom the statement is offered must have had the opportunity to cross-examine
at the former hearing or taking of the deposition.
Federal Rule 804 (b) (2) changes
the title of the dying declaration exception to "statement under belief of impending
d e a t h " , but other than the title and some modifications for civil proceedings which
could be deleted if the rule was adopted by the m i l i t a r y , the exception is the
190
same as the current Military R u l e .
Federal Rule 804 (b) (3) provides an exception not currently recognized in the
m i l i t a r y , declarations against interest. The reason the military has had no such191
exception is, of course, that despite M r . Justice Holmes' views to the c o n t r a r y ,
a declaration against penal interest has not been within the definition of a decla192
ration against interest.
The Federal R u l e , however, has resolved the argument
in favor of the late J u s t i c e , and it also allows third party confessions in criminal
cases to come in under the exception with suitable restrictions.
Logic has always
seemed to indicate that a declaration against penal interest was at least as trustworthy as a declaration against pecuniary interest, and the long awaited recognition of that logic should be a welcome addition to military practice.
Rule 804 (b)
(4) allows an exception for personal statements of pedigree which is immaterial to
criminal practice and probably should be abolished as an
193 exception distinct from
those previously discussed under Rule 803 in any case.
Rule 804 (b) (5) is a
residual exception identical to that discussed under Rule 8 0 3 , except that here
the declarant must be unavailable.
Federal Rule 805 specifically recognizes that hearsay within hearsay is not
necessarily inadmissible if each hearsay element within the statement independently
conforms to a hearsay exception.
Military law contains no specific statement on
this m a t t e r , but the Federal Rule seems reasonable and its adoption would certainly
not be harmful.
Federal Rule 805 provides the methods by which the credibility of
the declarant of a hearsay statement admitted into evidence may be attacked and
supported.
Here again, there is no Military Rule that speaks specifically to this
s u b j e c t , but the Federal Rule appears to be logical and in line with the general
rules on the credibility of witnesses and hence is worthy of adoption by the military.
IX.
Authentication and Identification (Rules 901-903)
This section of the Federal Rules concerns the authentication of various types
407
of documentary evidence and the identification of persons by the sound of voice.
Federal Rule 901 begins the section by providing a general rule and various illustrations of means by which certain documents and things can be authenticated through
194
the use of extrinsic evidence.
The comparable Military Rules
concern almost
exclusively the authentication of documents, and it can be stated at the outset
that adoption of the Federal Rule would provide more complete coverage of authentication requirements in g e n e r a l .
Rule 901 (a) is called a general provision, but in
fact seems little more than a truism.
Basically it states that an item can be
authenticated or identified by any evidence that shows the item is what it is claimed
195
to be.
The Military Rule contains a similar general provision regarding writings.
Federal Rule 901 (b) contains the listing of primarily common law methods of authentication and identification "by way of illustration only".
Rule 901 (b) (1) states
that the testimony of a witness with knowledge that a matter is what it is claimed
to be is an acceptable m e t h o d .
This seems more the familiar requirement of compe-
tency than a method of authentication and it would certainly work no change in 196
military practice.
Rule 901 (b) (2) allows, as does the comparable Military Rule,
the genuineness of handwriting to be shown by a nonexpert who is familiar with the
handwriting in question.
The Federal Rule includes the restriction that the famil-
iarity of the nonexpert must not have been acquired solely for the purpose of litigation.
The Military Rule contains no such proviso, but the tenor of the rule seems
to indicate that "legitimate" familiarity is what is contemplated.
Rule 901 (b) (3)
provides that handwriting may be compared by either an expert witness or the trier
197
of fact.
This coincides completely with the Military Rule.
Federal Rule 901 (b) (4) provides for authentication by "appearance, contents,
substance, internal p a t t e r n s , or other distinctive characteristics taken in conjunction with circumstances".
Although the commentary to this rule does not speci
describe the intended coverage of this provision, it is apparently meant to
198 provide
the authentication techniques used by fingerprint and ballistics experts.
The
6
408
Military Rules make no specific mention of ballistics authentication, but they do
199
provide for expert comparison of fingerprints.
Additionally, the Military pro-
vides that the comparison may be by certificate frsmthe custodian of military fingerprints as an exception to the best evidence r u l e . ^ 0 0
Undoubtedly necessity and con-
venience would require retention of this provision whether or not the Federal Rules
are adopted.
The commentary to Rule
201 901 (b) (4) does specifically state that it
encompasses the "reply doctrine".
The reply doctrine is also a part of current
202
military law
and this aspect of the Federal Rule would represent no change.
Federal Rule 901 (b) (5) allows a person familiar with the speaker to identify
the speaker's voice.
The Military Rules don^t specifically list this method of
identification, but it is doubtful that the Federal Rule would cause any change
in military practice.
As s t a 203
t e d , there is no doubt that identification by voice
is allowed in courts-martial,
but there seems to be no military law on the sub-
ject of authenticating telephone conversations by allowing the calling party to
testify that he called the number of the person sought to be identified as is
allowed by Federal Rule 901 (b) (6).
If the military has not adopted this expan-
sion of the voice authentication doctrine, in light of the telephone's position as
the
means jurisdictions
of communication
in do
today's
204 and
the primary
lead of most
so. society, the military should follow
205
Federal Rule 901 (b) (7) recognizes, as does the comparable Military Rule,
that official records must be authenticated.
This particular provision allows for
authentication by extrinsic proof of custody of the records, a method not often
used but certainly allowed in current military practice.
Rule 901 (b) (8) pro-
vides for authentication of ancient documents, a provision not found in military
law and probably unnecessary to its practice.
Rule 901 (b) (9) allows for evidence that a "process or system" used to produce a result produces an accurate result.
This provision, according to the commen207
t a r y , is intended to allow for recent developments in computer systems.
The mili-
tary has no comparable r u l e , but other Military Rules indicate a willingness to
6
40S
allow proof of business entries made by modern equipment
if adopted, would be in keeping with that trend.
208
and the Federal
Rule,
Federal Rule 901 (b) (10) prob-
ably overlaps some of the authentication methods already discussed and simply provides that authentication or identification may be accomplished by any other means
approved by the Supreme Court or Congress.
Federal Rule 902 provides for self-authentication, i . e . , items allowed to be
admitted without extrinsic proof of authenticity.
The first five subparts of
Rule 902 concern a topic of considerable interest in the m i l i t a r y , public and
official records and documents.
The Military Rules in this area are well developed
and provide, as does the Federal Rule, for self-authentication
of domestic records
209
both under and not under s e a l , foreign records, and the use of attesting
certificates.
The only advantage that would be realized by adopting the Federal Rules in this area
would be to obtain their more concisely stated form.
Federal Rules 902 (6) and (7) move into an area not considered by current
military law by allowing self-authentication for n e w s p a p e r s , periodicals, and trade
inscriptions.
The commentary justifies self-authentication for these items by
210
noting that the likelihood of forgery is very slight.
That rationale seems
reasonable and the adoption of these rules by the military should be encouraged.
Rule 902 (8) states that documents acknowledged by a notary public are self-authenticating.
Military law already provides this method of authentication for banking
211
entries
and adoption of the Federal Rule should create no problem.
is a special provision lending recognition to the self-authentication
of the Uniform Cormiercial C o d e .
be of no great moment.
Rule 902 (9)
provisions
As such, its adoption or not by the military would
Rule 902 (10) simply states that any document Congress says
is authentic or genuine is to be accepted as such.
There would certainly be no
problem in reconciling this rule with military practice.
Federal Rule 903 eliminates the common law rule that attesting witnesses must
be produced or accounted f o r .
The principal problems this rule resolves concern
410
on
probate proceedings and its adoption would cause no change in military practice.
X.
Contents of W r i t i n g s , Recordings and Photographs (Rules
1001-1008)
This section of the Federal Rules considers the oft-litigated problems surrounding the best evidence rule and the exceptions thereto.
subsection.
Rule 1001 is the definition
The definitions of writing, recording and photograph contained therein
212
are intended to insure coverage for various forms of modern data complications.
As all inclusive as the Federal Rule is, however, it is no more so than the Military
Rule which includes "every method of recording data upon any medium".
213
In its
definitions of original and duplicate, the Federal Rule dispenses with the term
214
"duplicate original" as used by the Military Rule
part and duplicate".
in favor of "original, counter-
The major difference in practice which would occur in military
law by adoption of the Federal Rule concerns the treatment of duplicates as discussed under Rule 1003.
Rule 1002 is a statement of the best215evidence rule itself.
from the military statement of the rule,
It does not differ
nor does it make any more progress
toward resolving the most difficult problem in this area — determining when the
"contents" of a writing are truly in issue.
Federal Rule 1003 would provide a
significant liberalization of current military practice by allowing duplicates the
same treatment as originals unless:
(1) a genuine question is raised as to the
authenticity of the original; or (2) in the circumstances it would be unfair to
admit the duplicate in lieu of the original.
The change provided by the Federal
Rule would seem both fair and beneficial to military practice.
Federal Rule 1004 begins the exceptions to the best evidence rule.
three subparts:
The first
original lost or destroyed, original not obtainable j and original
216
in possession of opponent, are matched by comparable military exceptions,
but
the Federal Rules are better stated and codify some limitations on these exceptions
that should be adopted by the military.
For e x a m p l e , under the Federal R u l e , if
411
3
41?
the original writing was lost or destroyed in bad faith by the proponent of the
copy, the lost or destroyed exception does not apply.
Rule 1004 (4) would provide
a change to military law by allowing secondary evidence on collateral m a t t e r s .
This exception seems logical and should be strongly considered for adoption.
Federal Rule 1005 is closely related to the provisions allowing self-authentication of public records and allows properly authenticated copies of such records
as an exception to the best evidence rule.
official records exception
910
of official records,
217
The Military Rules also provide an
and go further to provide an exception for summaries
a provision that should be retained by the military whether
or not the Federal Rules are adopted.
Rule 1006 allows summaries of voluminous
or bulky writings to be introduced as exceptions to the best evidence rule. The
219
Military Rule also recognizes the practical necessity of such an exception
and,
as does the Federal R u l e , requires that the opposing party have access to the
originals.
Rule 1007 provides a best evidence exception for the contents of
writings proved by the testimony, deposition or written admission of the party
against whom the writing is offered.
The Military Rules do not specifically speak
to this exception, but the Federal Rule would create no apparent conflict in military practice if it was adopted.
Rule 1008 is a rule without military counterpart
that would appear to be quite useful.
Basically, it delineates the functions of
judge and jury when an issue arises under the best evidence r u l e , e.g., whether the
original is in fact missing.
Undoubtedly, the same result could be reached under
current military rules, but the Federal Rule is notable for its location in the
very section where it is needed.
XI.
Miscellaneous Rules (Rules
1101-1103)
This section of the Federal Rules is a statement of the application of the
rules to various federal courts, the method by which amendments to the rules can
be made and the title.
6
As presently w r i t t e n , of c o u r s e , this section has no
41.2
application to military l a w , but if the Federal Rules were adopted by the military,
a similar section on the application of the rules to different types of courtsmartial and different stages of the judicial proceeding would have to be written.
Conclusion
As was pointed out in the introduction to this p a p e r , the Federal Rules of
Evidence represent the combined effort of many of the best legal minds in the
United States to compile a modern summary of the law of e v i d e n c e .
It is submitted
that an opportunity to utilize this valuable effort is one that should not be lightly
overlooked by the m i l i t a r y .
This article has a t t e m p t e d , through a comparison of the Federal and Military
Rules, to demonstrate the strengths and weaknesses of b o t h .
It has been shown
that the two sets of Rules are actually quite similar, but that the Federal Rules
encompass a number of progressive changes that could only be beneficial to military
practice.
A d d i t i o n a l l y , it has been shown that the number of Military Rules which
are different because of the peculiarities of military service are very few.
Naturally, should the military decide to adopt the Federal Rules, those doing so
would be free to retain the strengths of both sets while deleting the weaker areas,
but it is suggested that such "picking and choosing" should be kept to a minimum
for the sake of uniformity.
A further general point may be made in favor of adopt-
ing the Federal Rules based on the preceeding analysis.
That i s , whereas the
Federal Rules present a compact recitation of the rules of evidence in logical
sequence, the currently applicable Military Rules are spread throughout the MCM
and military case law.
The better availability of the rules in a concise codifica-
tion would certainly be a boon to military practicioners.
It would seem that the principal argument that could be made for retaining
the Military Rules in their present form is the familiarity of current military
practicioners with the current rules.
It should be n o t e d , h o w e v e r , that trial
413
3
41?
litigation is the function of junior officers in the military system.
These young
officers have b e e n , and will continue to b e , trained in the workings of the Federal
Rules of Evidence at their respective law schools.
There is surely no benefit to
the military in spending time and money educating lawyers in a different system
when the system they already know would serve military needs at least as w e l l , and
probably better.
In summary, the advantages to the military in adopting the Federal Rules of
Evidence far outweigh the disadvantages.
There is no time like the present to
begin.
414
-36-
FOOTNOTES
1.
Pub. L . No. 93-595 (Jan. 2 , 1975).
For a concise discussion of the events
leading to the adoption of the Federal Rules see L a r k i n , Federal Rules of Evidence, 6
Tech L . R e v . 773 (1975)[hereinafter cited as
Larking.
2.
ExecT Ordlr 11?76~(Jun. 1 9 . 1969).
3.
Fed. R . Evid. 101-102 (1975).
4.
Manjal for Courts-Martial, United States P . 15^(d) (rev. ed. 19&9) [herein-
after cited as M C M U .
5.
Larkin, supra n o t e 1 , commentary to Rule 103.
6.
Fed. R. Evid. 103(d) (1975).
7.
M C M P . 15^(c).
As i s readily apparent, a reviewing court w i l l have a m u c h
more difficult time considering evidence that w a s excluded at the trial level
than that erroneously a d m i t t e d .
3.
United States v . W e s t , 49 C . M . R . 7 1 . 73
(197*0.
citing United States v .
Bras sell and Pinkney, 4 7 C . M . R . 3 0 5 . 307 (1973), aff'd sub no.m, United States
v . Pinkney, 22 U.S.C.M.A. 595.
C . M . R . 219
(197*0;
United States v . Shackleford,
^ 3 C . M . R . 936, 993 (1971) citing United States v . Patrick, 8 U.S.C.M.A. 2 1 2 ,
2k C . M . R . 22 (1957).
9.
10.
IdIn fact, the rule is derived primarily from Rule 4 3 ( c ) of the Federal Rules
of Civil Procedure.
See L a r k i n , supra note 1, comnentary to Rule 103.
11.
M C M P . 57(g)(1).
12.
United States v . Salisbury, 50 C . M . R . 175. 179 (1975).
13.
M C M P . 57(g)(2).
14.
The rule seems to b e unquestioned b y those military cases discussing i t .
United States v . Richardson, 21 U.S.C.M.A. 333. ^ 5 C . M . R . 157 (1972); United
States v . Fseley, 4 7 C . M . R . 5 3 1 , 585 (1973).
15.
6
Larkin, supra note 1, commentary to Rule 10*+.
415
16.
M C M P . 57(b).
17.
M C M P . 57(g)(2).
13.
M C M P . 137 speaks to the general requirement t h a t evidence be relevant, b u t
it is discussing l o g i c a l relevancy as opposed to conditional relevancy.
relevancy is discussed at Federal Rule 4 0 1 .
Logical
For t h e distinction between con-
d i t i o n a l and logical relevancy, see L a r k i n , supra note 1 , commentary to Rule 10^f.
.19.
M C M P . 57(g).
It should be noted that the Federal R u l e , stated in mandatory
t e r m s , comports more clearly w i t h the constitutional rule announced in Jackson v .
D e n n o , 373 U . S . 368 (1964-).
It is also apparent that the Military Rules follow
Denno insofar as i t requires the military judge to make a preliminary ruling on
t h e voluntariness of a confession before submitting i t to t h e court members.
M C M P.l40(a); United States v . Meade, 20 U.S.C.M.A. 5 1 0 , k j C.K.R. 350 (1971).
This Being the c a s e , there would seem to b;, no reason w h y the judge's prel i m i n a r y determination should not b e made out of t h e hearing to the court members
a s a m a t t e r of c o u r s e , rather than only on request of the defense.
20.
M C M P . 57(g)(2).
21.
M C M P . 140(a).
22.
L a r k i n , supra note 1, commentary tp Rule 104.
23.
I n f a c t , due to the expanded cross-examination available under the 19^9
revision of the H C M , see United States v . Farrell, 50 C . M . R . 555 (1975). a
limitation on the cross-examination of the accused on preliminary matters would
s e e n valuable in i t s own right.
24.
I t should be noted that this rule does n o t change the rule announced i n
Bruton v . United S t a t e s , 389 U . S . 818 (1963), wherein t h e Court stated that a
l i m i t i n g instruction was not enough to overcome the prejudice engendered by the
i n t r o d u c t i o n of the confession of a co-defendant.
i n the military.
The Bruton rule is followed
S e e , e.g., United States v . A p o n t e , 4 5 C.M.R. 522, 525 (1972).
25.
H C M P . 53(c).
26.
M C M P . 140(b) (statement of co-accused); P . 154(b)(3) (stipulations by only
one of accused).
41LS
2
27.
There is a dearth of military case law o n this subj-ct, with the only dis-
cussion existing centered around the Bruton r u l e , supra note 24.
23.
Larkin, supra note 1 , commentary to Rule 105.
29.
One could argue that i n t h e absence of a Military R u l e , this part of Federal
Rule 105 already applies i n courts-martial b y virtue of M C M P . 137, w h i c h states:
"So far as not otherwise prescribed i n this m a n u a l , the rules of evidence generally
recognized in the t r i a l of criminal cases i n the United States district c o u r t s . . .
w i l l be applied b y courts-raartial."
30.
MCM P . 137.
31.
MCM P . 1^7.
32-
F . R . Civ. P . 4 4 . 1 ; F . R . Crim. P . 2 6 . 1 .
33»
In speaking of P . 147(b) (determination of foriegn l a w ) , the Court of
Military Appeals said:
A s to foriegn l a w , the Manual provides t h a t the party desiring that
such 'be determined b y the court should present ... the material o r
source upon w h i c h h e relies. 1 A similar requirement is iraoosed i n
the Federal civilian courts. W e conclude, therefore, that the deficiency of proof m a y n o t be supplied b y judical notice of the law
of Okinawa.
United States v . Pettingill, 21 U.S.C.M.A. 4 0 9 , 4 5 C.M.R. 183, 136 (1972).
34.
M C M P . 147(a).
35*
The distinction between adjudicative and legislative facts can be simply
stated.
A n adjudicative fact is one that i s one of t h e facts of a particular
case, e.g., that t h e conduct charged is i n violation of an extant Army R e g u l a t i o n .
A legislative fact i s one on w h i c h courts, especially appellate courts, may d r a w
i n the lawmaking p r o c e s s , e.g., that the husband-wife privilege supports a valuable social oolicy — - retaining family harmony.
Perhaps because no rule could
b e (or should b e ) drawn to control judicial l a w m a k i n g , rules concerning judicial
notice do not purport to limit legislative f a c t s .
For a comolete discussion of
adjudicative vis' a vis legislative facts see D a v i s , A n Approach to Problems of
Evidence i n the Administrative Process, 5 5 H a r v . L . R e v . 3 6 4 , 40^-07 (1942).
3
41?
36.
F . R . Svid. 201(b); M C M P . 147(a).
37-
Notes 3 2 . 33> s u p r a , and accompanying t e x t .
38.
In this writer's opinion, determination o f foriegn l a w is more properly
included under evidence rather than under p r o c e d u r e .
39.
S e e , e.g., United States v . Snyder, 1 U . S . C . M . A . 4 2 3 , 4 C.M.R. 15 (1952);
United States v . L e v e s q u e , 47 C.M.R. 285 (1973).
40.
United States v . Stepp, 4 3 C.M.R. 313 (1974); United States v . J a c k s o n , 4 6
C . M . R . 1128 (1973).
41.
United States v . Buswell, 4 5 C.M.R. 7 4 2 (1972).
42.
The court m a y , i f so disposed, order government appellate counsel to obtain
a copy of the pertinent regulation.
43.
United States v . Jackson, 4 6 C.M.R. 1128 (1973); United States v . Buswell,.
4 5 C . M . R . 742 (1972).
44.
Note 3 4 , supra, and accompanying t e x t .
45.
M C M P . 137.
46.
The drafters of t h e 1969 Manual a p p a r e n t l y believed "the distinction w a s
confusing and served no useful purpose."
M C M , 1969 (Rev.), a t 27-1
47.
M C M P . 137.
DA P a n . 2 7 - 2 , Analysis of Contents,
(1970).
The Military Rule also a l l o w s for provisional admission of
evidence upon a statement of a party that relevancy w i l l b e shown l a t e r .
The
M i l i t a r y Rule itself questions the desirability o f this practice, and the b e t t e r
solution to the problem seems to ba that t a k e n i n Federal Rule 10i|-(b).
That
rule requires a preliminary determination b y t h e t r i a l judge before evidence
t h e relevancy of w h i c h i s conditioned on f a c t i s a d m i t t e d .
See notes 15-18 supra,
and accompanying t e x t .
48.
M C M P . 137.
49.
United States v . Thomas, 6 U.S.C.M.A. 9 2 , 19 C . M . R . 213 (1955).
50.
United States v . Janis, 24 U.S.C.M.A. 2 2 5 , 2 2 7 , 51 C . M . R . 5 2 2 , 524 (1976).
51.
The compatibility of military and f e d e r a l practice is further demonstrated
$18
b y the fact that Federal Rule 403 does not list surprise as a ground for exclusion.
The drafters of the Federal Rule apparently considered a motion for
continuance, rather than exclusion, to be the proper remedy for surprise.
L a r k i n , suora note 1, commentary to Rule 4 0 3 .
See
A motion for continuance i s also
the proper vehicle w i t h w h i c h to combat surprise i n the military.
See United
States v . Tope, 47 C . M . R . 2 9 ^ (1973).
52.
M C M P . 133(f)(2).
53.
L a r k i n , supra note 1 , commentary to Rule 404-.
54.
This accords with the prevailing v i e w i n the vast majority of jurisdict-
ions.
E . Cleary, KcCorraick on Evidence 4 5 5 (1972)
[^hereinafter cited as
McCormickJ.
55.
M C M P . 138(f)(2).
56.
M C M P . 138(f)(2).
57.
United States v . Sears, 20 U.S.C.M.A. 3 3 0 , 4 3 C . M . R . 220 (1971).
58.
Id.
59.
I d . a t 43 C.M.R. 224, citing United States v . 3 r o w n i n g , 1 U.S.C.M.A. 5 9 9 ,
6 0 1 , 5 C.M.R. 27 (1952).
60.
For example, see Judge Garden's dissenting opinion i n United States v .
Scars, 20 U.S.C.M.A. 3 3 0 , 4 3 C . M . R . 220 (1971), i n which t h e Court of Military
Appeals set aside findings of guilty because t h e Government refused to fly two
witnesses who would have testified to t h e accused's good general character 10,000
miles to attend the trial.
Judge Darden noted that the accused's own admissions
established his liability for the specific offense charged a n d that evidence of
general good character should, under such circumstances, "be relevant only for
extenuati-ng purposes."
61.
43 C.M.R. a t 2 2 5 .
If this writer can b e permitted a short digression based on personal ex-
perience as a combat arms commander b o t h i n the United States and Vietnam, t h e
w r i t e r can submit, without fear of contrdiction, that t h e r e is no correlation
b e t w e e n superior combat records and a l a c k of propensity to commit civil offenses.
5419
62.
In this manner, evidence of the accused's courage would be admissible in a
prosecution for cowardice, b u t not in a prosecution for r a p e .
I n either case,
however, the prior courageous a c t of the accused could be considered i n mitigation of his punishment.
63.
M C M P . 133(f)(3).
64.
MCM P . 138(f)(3).
65.
The Federal Rule directs the reader to Federal Rules 607-609.
The Military
Rule points to MCM P . 153(b)(2).
66.
M C M P . 138(g).
67.
M C M P . 133(g)(7).
68.
The Federal Rule has b e e n criticised b y one commentator as being too res-
trictive i n its exceptions.
"Wendorf, Should Texas Adopt The Federal Rules Of
Evidence, 28 Baylor L . Rev. 2 4 9 , 255 (1976) [hereinafter cited as Wendorf]] .
If the military also considered the Federal Rule too restrictive, i t could,
for example, expand the Federal Rule to include the current "catch-all" exception i f the Federal Rule is Adopted.
69.
F. R . Evid. 4 0 5 ( a ) (1975).
70.
MCM"*P."133(F)(1).
71.
F. R . Evid. 4 0 5 ( a ) (1975).
72.
McCormick, supra n o t e 5 4 , a t 4 4 3 .
73-
I d . at 4^3 n . 8 . Some examples are: defamation, when the slander charges
bad character and the defense i s truth; a prosecution for seduction w h e n the
statute requires previously chaste character; negligent entrustment of an automobile to an incompetent or unfit person.
74.
Id.
A s always, i n the absence of a Military R u l e , i t can b e argued that the
Federal Rule i s already a part of military practice.
See note 2 9 , supra.
75.
M C K P . 138(h).
76.
The Military Rule specifically provides that habit m a y b e shown b y a
sufficient number of specific instances of conduct, whereas Congress deleted
6
420
a similar subdivision from the Federal R u l e .
It a p p e a r s , however, t h a t the
deletion w a s not intended to disallow proof b y specific instances, b u t rather
to allow the tidal courts latitude in determining how habit m a y b e proved.
Larkin,
supra n o t e 1, commentary to Rule 4 0 6 .
77.
MCM P. 70.
78.
The plea of nolo benefits the accused i n that i t is generally inadmissible -
i n a subsequent civil action.
:
McCormick, supra note
a t 637-
T h e plea benefits
the Government b y promoting the disposition of criminal cases by compromise
rather t h a n requiring a full blown trial m e r e l y to avoid t h e civil consequences
of a guilty p l e a .
L a r k i n , supra note 1 , commentary to Rule 4 1 0 .
79.
Kercheval v . United States, 2 7 ^ U . S . 220 (1927).
80.
United States v . Daniels, 11 U.S.C.M.A. 5 2 , 28 C . M . R . 276 (1957).
81.
Id.
82.
See United States v . Hodges, 22 U . S . C . M . A . 5 0 6 , 47 C.M.R. 923 (1973).
83.
L a r k i n , supra note 1, Commentary to Rule 5 0 1 .
84.
M C M P . 151.
85.
The Federal R u l e makes clear that, privileges m a y b e available to govern-
m e n t s as w e l l as i n d i v i d u a l witnesses, w h i c h also conforms with the Military
Rule.
86.
The privileges recognized b y the M i l i t a r y Rule conform, with two ex-
ceptions, to those originally promulgated b y t h e Supreme Court.
The except-
i o n s are proposed Rule 5 0 8 (Trade Secrets), and proposed.Rule 5 0 ^ (Fsychotnerapist-Patient).
A privilege for trade secrets is of little moment to t h e
m i l i t a r y , but a n u m b e r of commentators h a v e urged t h e adoption of the psychotherapist-patient privilege for those jurisdictions not recognizing a physicianpatient privilege.
63, at 253.
McCormick, supra n o t e
at 213 n . 9 ; VJendorf, supra note
The adoption of t h e psychotherapist-patient privilege b y t h e m i -
litary seems worthy o f consideration whether or not; t h e "Federal Rules a r e adopted.
87.
L a r k i n , supra n o t e 1 , commentary to R u l e 601.
7
421
Among the grounds of
incompetency abolished w e r e a g e , b i a s , conviction of crime, and mental capacity.
88.
MCM; P . 148.
89.
L a r k i n , supra note 1 , commentary to Rule 6 0 2 .
90.
M C M P . 138(d).
91.
L a r k i n , supra note 1 , commentary to Rule 6 0 3 .
92.
M C M P . 114(f).
93.
M C M P . 112(d).
94.
M C M P . 112(b).
95.
MCM P . 63.
96.
Uriited States v . A i r h a r t , 23 U.S.C.M.A. 124, 48 C . M . R . 685 (1974).
97.
M C M P . 62(f)(13).
98.
S e e , e.g.. United States v . Scarborough, 4 9 C . M . R . 580 (1974).
99-
MCM; P . 6 3 .
100.
M c C o r m i c k , supra note 5 4 , at 147.
101.
L a r k i n , supra note 1, commentary to Rule 6 0 5 .
102.
M C M .P. 63.-
103.
M C M P . 62(f)(13).
104.
M c C o r m i c k , supra n o t e 5 4 , at 148-49.
105.
United States v . W e s t , 23 U.S.C.M.A. 7 7 , 4 3 C . M . R . 5>+3 (1974).
106.
I d . a t 4 8 C.M.R. 5 4 9 .
107.
L a r k i n , suora note 1, commentary to Rule 6 0 7 .
103.
M c C o r m i c k , supra n o t e 5 4 , at 75-73.
109.
M C M P . 153(b).
110.
M C M P . 153(b)(2)(a).
111.
M C M P . 153(b)(2)(b).
112.
United States v . W e a v e r , 23 U.S.C.M.A. 4 4 5 , 50 C . M . R . 4 6 4 (1975).
113.
United States v . Sampson, 23 U.S.C.M.A. 532. 5 0 C . M . R . 671
114.
L a r k i n , supra note 1, commentary to Rule 609(e).
115.
L a r k i n , supra note 1, commentary to Rule 6l0.
(1975).
116.
H e r e a g a i n , t h e a b s e n c e o f a M i l i t a r y Rule n a y indicate: that the Federal
has b e e n adopted p e r M C M P . 1 3 7 . See n o t e 29 s u p r a .
117.
M C M P . 149(a).
118.
MCM PP. 54(a), 149(b), 150(a).
119.
M C M P . 149(b).
120.
M C M P . 149(b).
121.
M C M P . 149(c).
122.
M C M P . '149(b)...
123-
MCM P . 149(c).
124.
U n i t e d States v . A l b o , 2 2 U . S . C . M . A . 3 0 , 4 6 C . M . R . 30 (1972).
125.
M C M P . 146(a).
126.
U n i t e d States v . P r u i t t , 1 2 U . S . C . M . A . 3 2 2 , 3 0 C . M . R . 3 2 2 (1961); United
L a r k i n , supra note 1 , c o m m e n t a r y to R u l e 6 1 1 ( c ) .
States v . B o x d a l e , 4 6 C . M . R . 1 0 0 2 (1972).
In n e i t h e r case w a s t h i s p a r t i c u l a r
issue outcome determinative.
127..
2 B r . & B . 2 8 4 , 129 E n g . R e p . 976 (1820).
123.
L a r k i n , suora n o t e 1 , c o m m e n t a r y to Rule 6 1 3 .
129.
M C M P . 153(c).
130.
MCM P . 54(b).
131.
MCM P. 54(a).
132.
MCM P . 153(b).
133.
T h e M i l i t a r y Rule i s stated i n t h e M a n u a l a t P . 53(f!)•
134.
M C M P . 133(e).
135.
M C M P . 138(e).
136.
M C M P . 133(e).
137.
M C M P . 138(e); L a r k i n , supra note 1 , commentary to .Rule 7 0 J .
138.
T e x a s , for e x a m p l e , abolished: the "ultimate i s s u e " r u l e i n 1 9 6 5 .
Carr v .
Radkey, ,393 3.W.2d 306 (Tex. 1965).
139.
MCM P . 133(e).
14.0..
N o t h i n g i n t h e F e d e r a l R u l e s on expert t e s t i m o n y w o u l d c h a n g e t h e m i l i t a r y
practice of allowing s u b s t a n t i a l leeway to d e f e n s e counsel i n testing an expert's
skill oecause of t h e limitations peculiar to t h e m i l i t a r y regarding t h e a b i l i t y
(or inability) of the defense to obtain i t s own expert.
United States v . Mc-
F e r r e n , 6 U.S.C.M.A. 4 8 6 , 2 0 C . M . R . 202 (1955).
141.
Larkin, supra note 1 , commentary to Rule ? 0 o .
142.
MCM P . 116.
A case clearly demonstrating t h e strong showing of n e c e s s i t y
prerequisite to hiring a civilian expert at government expense i s United States
v . Johnson, 22 U . S . C . M . A . 4 2 4 , 47 C . M . R . 4 0 2 (1973).
143.
M C M P . 139(a).
144.
M C M P . 140.
145.
McCormick, supra n o t e 5 4 , a t 3 1 1 , 6 2 9 .
146.
I d . a t 311.
147.
Id*
143.
M C M P . 145(a).
149.
M C M P. 153(c).
310-12.
1 5 0 . • M C M P . 153(a).
151.
F . R. Evid. 8 0 4 ( b ) ( 1 ) (1975).
152.
VJendorf, supra n o t e 6 8 , a t 2 6 7 .
153.
Larkin, suora n o t e 1, commentary to Rule 3 0 1 .
154.
McCormick, supra note 5 4 , a t 7 1 0 .
155.
I d . at 709-11.
156.
W e n d o r f , suora n o t e 6 8 , a t 2 6 8 .
157.
M C M P . 142(b).
153.
M C M P . 142(b).
159.
MCM P . 142(d).
160.
The Federal Rule does allow such a statement under this exception i n w i l l
contests.
That aspect of the Federal Rule could obviously b e deleted i f the
m i l i t a r y should opt to a d o p t the r u l e .
161.
McCormick, suora n o t e 5 4 , a t 691
10
162.
MCM P . 146(a).
163.
MCM P . 144(c).
164.
MCM P . 143(a)(2)(h).
165.
MCM P . 144(b).
166.
F . R . Evid. 803(3)(B) (1975); M C M P . 144(d).
167.
MCM"p.~l43(a)(2)(g).
163.
V/endorf, supra note 6 8 , a t 2 7 1 .
1o9.
See note 29, supra.
170.
L a r k i n , supra note 1, commentary to Rule 803(18).
171.
M C M P . 133(e).
It should b e noted t h a t the current Military Rule does
n o t limit cross-examination to treatises recognized or relied on by the expert.
The prevailing rule prior to the adoption of the Federal Rules, however, was to
recognize such a limitation.
The n e w Federal Rule expressly rejects the limit-
a t i o n , thereby conforming w i t h m i l i t a r y practice.
Larkin, supra note 1, comment-
a r y to Rule 803(18).
172.
L a r k i n , supra note 1, commentary to Rule 303(13).
173.
McCormick, supra note 5 4 , a t 7 4 5 .
174.
MCM P . 133(f).
175.
MCM P . 153(b)(2).
176.
MCM P . 133(g).
177.
MCM P . 153(b)(2)(b).
173.
MCM P . 75(b)(2).
179.
L a r k i n , supra n o t e 1, commentary to Rule 803(22).
180.
W e n d o r f , supra note 6 3 , a t 2 7 3 .
181.
Id.
132.
L a r k i n , supra note 1, commentary to Rule 303(24).
183.
Id.
134.
M C M P . 142(a).
135.
M C M P . 145(b).
425
11
186.
MCM P . 145(a).,
The Court of M i l i t a r y Appeals has held'that meeting the
100. mile radius requirement is not enough to establish the unavailability of a
service member witness unless i t is also shown that his absence is required b y
military necessity.
United States v . Davis, 19 U.S.C.M.A. 2 1 7 , 41 C.M.R. 217
(1970).
187.
United States v . G a i n e s , 20 U.S.C.M.A. 5 5 7 , 4 3 C.M.R. 397 0 9 7 1 ) .
188.
M C M P . 145(b).
189.
M C M P . 145(a).
190.
M C M P. 142(a).
191.
Donnelly v . United States, 223 U . S . 243 (1913) (Holmes, J . , dissenting).
192.
McCormick, supra note 5 4 , a t 6 7 3 .
193.
W e n d o r f , supra note 6 8 , at 2 7 6 .
194.
MCM P. 143(b).
195.
M C M P . 143(b)(1).
196.
MCM P . 143(b)(1).
197.
M C M P . 143(b)(1).
193.
Wendorf, supra note 6 8 , at 2 7 8 .
199.. MCM P . 144(e).
200.
M C M P . 143(a)(2)(f).
201.
Larkin, supra note 1 , commentary to Rule 901(b)(4).
202.
MCM P . 143(b)(1).
203.
See United States v . M e w b o r n , 17 U.S.C.M.A. 4 3 1 , 38 C.M.R., 229 (1968);
United States v.. Greer, 3 U.S.C.M.A. 5 7 6 , 13 C . M . R . 132 (1953).
204.
McCormick, supra note 5 4 , at 5 5 4 .
205.
M C M P . 143(b)(2).
206.
M C M P . 143(b)(2)(f).
207.
Larkin, supra note 1, commentary to Rule. 901(b)(9).
203.
M C M P . 144(c).
209.
M C M P . 143(b)(2)(a-f).
12
210.
Larkin, suora note 1, commentary to Rule 902(6).
211.
MCM P. 143(b)(3).
212.
Larkin, suora note 1, commentary to Rule 1001(1).
213.
MCM P. 143(d).
214.
MCM P . 143(a).
215.
M C M P . 143(a).
216.
MCM P . 143(a)(2)(a).
21?.
MCM P . 143(a)(2)(c).
213.
MCM P . 143 (a)(2)(d).
219.
MCM P . 143(a)(2)(b).
13