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

M.R.E. 321(c)(2)(A)
c a u s e s h o w n . F a i l u r e t o s o m o v e c o n s t i t u t e s a
waiver of the motion or objection.
(B) If the prosecution intends to offer such evidence
and the evidence was not disclosed prior to
a r r a i g n m e n t , t h e p r o s e c u t i o n s h a l l p r o v i d e t i m e l y
notice to the military judge and counsel for the accused.
The defense may enter an objection at that
time and the military judge may make such orders as
are required in the interests of justice.
(C) If evidence is disclosed as derivative evidence
under this subdivision prior to arraignment,
any motion to suppress or objection under this rule
shall be made in accordance with the procedure for
challenging evidence under (A). If such evidence
has not been so disclosed prior to arraignment, the
requirements of (B) apply.
(3) Specificity. The military judge may require
the defense to specify the grounds upon which the
defense moves to suppress or object to evidence. If
defense counsel, despite the exercise of due diligence,
has been unable to interview adequately those
persons involved in the lineup or other identification
process, the military judge may enter any order required
by the interests of justice, including authorization
for the defense to make a general motion to
suppress or a general objection.
(d) Burden of proof. When a specific motion or
objection has been required under subdivision (c)(3),
the burden on the prosecution extends only to the
grounds upon which the defense moved to suppress
or object to the evidence. When an appropriate objection
under this rule has been made by the defense,
the issue shall be determined by the military
judge as follows:
(1) Right to counsel. When an objection raises the
right to presence of counsel under this rule, the
prosecution must prove by a preponderance of the
evidence that counsel was present at the lineup or
that the accused, having been advised of the right to
the presence of counsel, voluntarily and intelligently
waived that right prior to the lineup. When the military
judge determines that an identification is the
result of a lineup conducted without the presence of
counsel or an appropriate waiver, any later identification
by one present at such unlawful lineup is also
a result thereof unless the military judge determines
that the contrary has been shown by clear and convincing
evidence.
(2) Unreliable identification. When an objection
III-18
raises the issue of an unreliable identification, the
prosecution must prove by a preponderance of the
evidence that the identification was reliable under
the circumstances; provided, however, that if the
military judge finds the evidence of identification
inadmissible under this subdivision, a later identification
may be admitted if the prosecution proves by
clear and convincing evidence that the later identific
a t i o n i s n o t t h e r e s u l t o f t h e i n a d m i s s i b l e
identification.
(e) Defense evidence. The defense may present evidence
relevant to the issue of the admissibility of
evidence as to which there has been an appropriate
motion or objection under this rule. An accused may
testify for the limited purpose of contesting the legality
of the lineup or identification process giving
rise to the challenged evidence. Prior to the introduction
of such testimony by the accused, the def
e n s e s h a l l i n f o r m t h e m i l i t a r y j u d g e t h a t t h e
testimony is offered under this subdivision. When
the accused testifies under this subdivision, the accused
may be cross-examined only as to the matter
on which he or she testifies. Nothing said by the
accused on either direct or cross-examination may
be used against the accused for any purpose other
than in a prosecution for perjury, false swearing, or
the making of a false official statement.
(f) Rulings. A motion to suppress or an objection to
evidence made prior to plea under this rule shall be
ruled upon prior to plea unless the military judge,
for good cause, orders that it be deferred for determination
at the trial of the general issue or until
after findings, but no such determination shall be
deferred if a party’s right to appeal the ruling is
affected adversely. Where factual issues are involved
in ruling upon such motion or objection, the military
judge shall state his or her essential findings of fact
on the record.
(g) Effect of guilty pleas. Except as otherwise exp
r e s s l y p r o v i d e d i n R . C . M . 9 1 0 ( a ) ( 2 ) , a p l e a o f
guilty to an offense that results in a finding of guilty
waives all issues under this rule with respect to that
offense whether or not raised prior to the plea.
SECTION IV
RELEVANCY AND ITS LIMITS
Rule 401. Definition of “relevant evidence”
“Relevant evidence” means evidence having any