2008 edition - Fort Sam Houston - U.S. Army

Rule 101. Scope
( a ) A p p l i c a b i l i t y . T h e s e r u l e s a r e a p p l i c a b l e i n
courts-martial, including summary courts-martial, to
the extent and with the exceptions stated in Mil. R.
Evid. 1101.
(b) Secondary Sources. If not otherwise prescribed
in this Manual or these rules, and insofar as practicable
and not inconsistent with or contrary to the
code or this Manual, courts-martial shall apply:
(1) First, the rules of evidence generally recognized
in the trial of criminal cases in the United
States district courts; and
( 2 ) S e c o n d , w h e n n o t i n c o n s i s t e n t w i t h s u b -
division(b)(1), the rules of evidence at common law.
(c) Rule of construction. Except as otherwise provided
in these rules, the term “military judge” inc
l u d e s t h e p r e s i d e n t o f a s p e c i a l c o u r t - m a r t i a l
without a military judge and a summary court-martial
officer.
Rule 102. Purpose and construction
These rules shall be construed to secure fairness
i n a d m i n i s t r a t i o n , e l i m i n a t i o n o f u n j u s t i f i a b l e e x -
pense and delay, and promotion of growth and development
of the law of evidence to the end that the
t r u t h m a y b e a s c e r t a i n e d a n d p r o c e e d i n g s j u s t l y
determined.
Rule 103. Ruling on evidence
(a) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless the ruling materially prejudices a
substantial right of a party, and
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection,
if the specific ground was not apparent from
the context; or
(2) Offer of proof. In case the ruling is one excluding
evidence, the substance of the evidence was
made known to the military judge by offer or was
apparent from the context within which questions
were asked. Once the military judge makes a defini-
PART III
MILITARY RULES OF EVIDENCE
SECTION I
GENERAL PROVISIONS
tive ruling on the record admitting or excluding evidence,
either at or before trial, a party need not
renew an objection or offer of proof to preserve a
claim of error for appeal. The standard provided in
this subdivision does not apply to errors involving
r e q u i r e m e n t s i m p o s e d b y t h e C o n s t i t u t i o n o f t h e
United States as applied to members of the armed
forces except insofar as the error arises under these
rules and this subdivision provides a standard that is
more advantageous to the accused than the constitutional
standard.
(b) Record of offer and ruling. The military judge
may add any other or further statement which shows
the character of the evidence, the form in which it
w a s o f f e r e d , t h e o b j e c t i o n m a d e , a n d t h e r u l i n g
thereon. The military judge may direct the making
of an offer in question and answer form.
(c) Hearing of members. In a court-martial composed
of a military judge and members, proceedings
shall be conducted, to the extent practicable, so as to
prevent inadmissible evidence from being suggested
to the members by any means, such as making statements
or offers of proof or asking questions in the
hearing of the members.
(d) Plain error. Nothing in this rule precludes taking
notice of plain errors that materially prejudice
substantial rights although they were not brought to
the attention of the military judge.
Rule 104. Preliminary questions
(a) Questions of admissibility generally. Preliminary
questions concerning the qualification of a person to
be a witness, the existence of a privilege, the admissibility
of evidence, an application for a continuance,
or the availability of a witness shall be determined
by the military judge. In making these determinations
the military judge is not bound by the rules of
evidence except those with respect to privileges.
( b ) R e l e v a n c y c o n d i t i o n e d o n f a c t . W h e n t h e
relevancy of evidence depends upon the fulfillment
of a condition of fact, the military judge shall admit
it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of
the condition. A ruling on the sufficiency of evi-
III-1