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

App. 22, M.R.E. 101(a) APPENDIX 22
inquiry unless otherwise required by competent authority. See
Part I, Para. 2 of the Manual. The Rules, however, serve as a
“guide” for such tribunals. Id.
The Military Rules of Evidence are inapplicable to proceedings
conducted pursuant to Article 15 of the Uniform Code of Military
Justice.
The decisions of the United States Court of Appeals for the
Armed Forces and of the Courts of Criminal Appeals must be
utilized in interpreting these Rules. While specific decisions of
the Article III courts involving rules which are common both to
the Military Rules and the Federal Rules should be considered
very persuasive, they are not binding; see Article 36 of the Uniform
Code of Military Justice. It should be noted, however, that a
significant policy consideration in adopting the Federal Rules of
Evidence was to ensure, where possible, common evidentiary law.
(b) Secondary sources. Rule 101(b) is taken from Para. 137 of
MCM, 1969 (Rev.) which had its origins in Article 36 of the
Uniform Code of Military Justice. Rule 101(a) makes it clear that
the Military Rules of Evidence are the primary source of evidentiary
law for military practice. Notwithstanding their wide scope,
h o w e v e r , R u l e 1 0 1 ( b ) r e c o g n i z e s t h a t r e c o u r s e t o s e c o n d a r y
sources may occasionally be necessary. Rule 101(b) prescribes
the sequence in which such sources shall be utilized.
Rule 101(b)(1) requires that the first such source be the “rules
of evidence generally recognized in the trial of criminal cases in
the United States District courts.” To the extent that a Military
Rule of Evidence reflects an express modification of a Federal
Rule of Evidence or a federal evidentiary procedure, the President
has determined that the unmodified Federal Rule or procedure is,
within the meaning of Article 36(a), either not “practicable” or is
“contrary to or inconsistent with” the Uniform Code of Military
Justice. Consequently, to the extent to which the Military Rules
do not dispose of an issue, the Article III Federal practice when
practicable and not inconsistent or contrary to the Military Rules
shall be applied. In determining whether there is a rule of evidence
“generally recognized”, it is anticipated that ordinary legal
research shall be involved with primary emphasis being placed
upon the published decisions of the three levels of the Article III
courts.
Under Rule 1102, which concerns amendments to the Federal
Rules of Evidence, no amendment to the Federal Rules shall be
applicable to courts-martial until 180 days after the amendment’s
effective date unless the President shall direct its earlier adoption.
Thus, such an amendment cannot be utilized as a secondary
source until 180 days has passed since its effective date or until
the President had directed its adoption, whichever occurs first. An
amendment will not be applicable at any time if the President so
directs.
It is the intent of the Committee that the expression, “common
law” found within Rule 101(b)(2) be construed in its broadest
possible sense. It should include the federal common law and
what may be denominated military common law. Prior military
cases may be cited as authority under Rule 101(b)(2) to the extent
that they are based upon a present Manual provision which has
been retained in the Military Rules of Evidence or to the extent
that they are not inconsistent with the “rules of evidence generally
recognized in the trial of criminal cases in the United States
District courts,” deal with matters “not otherwise prescribed in
this Manual or these rules,” and are “practicable and not inconsis-
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tent with or contrary to the Uniform Code of Military justice or
this Manual.”
(c) Rule of construction. Rule 101(c) is intended to avoid unnecessary
repetition of the expressions, “president of a special courtmartial
without a military judge” and “summary court-martial
o f f i c e r ” . “ S u m m a r y c o u r t - m a r t i a l o f f i c e r ” i s u s e d i n s t e a d o f
“ s u m m a r y c o u r t - m a r t i a l ” f o r p u r p o s e s o f c l a r i t y . A s u m m a r y
court-martial is considered to function in the same role as a
military judge notwithstanding possible lack of legal training. As
previously noted in Para. 137, MCM, 1969 (Rev.), “a summary
court-martial has the same discretionary power as a military judge
concerning the reception of evidence.” Where the application of
these Rules in a summary court-martial or a special court-martial
without a military judge is different from the application of the
Rules in a court-martial with a military judge, specific reference
has been made.
Disposition of present Manual. That part of Para. 137, MCM,
1969 (Rev.), not reflected in Rule 101 is found in other rules, see,
e.g., Rules 104, 401, 403. The reference in Para. 137 to privileges
arising out of treaty or executive agreement was deleted as being
unnecessary. See generally Rule 501.
Rule 102 Purpose and construction
Rule 102 is taken without change from Federal Rule of Evidence
102 and is without counterpart in MCM, 1969 (Rev.). It
provides a set of general guidelines to be used in construing the
Military Rules of Evidence. It is, however, only a rule of construction
and not a license to disregard the Rules in order to reach
a desired result.
Rule 103 Rulings on evidence
(a) Effect of erroneous ruling. Rule 103(a) is taken from the
Federal Rule with a number of changes. The first, the use of the
language, “the ruling materially prejudices a substantial right of a
party” in place of the Federal Rule’s “a substantial right of party
is affected” is required by Article 59(a) of the Uniform Code of
Military Justice. Rule 103(a) comports with present military practice.
The second significant change is the addition of material relating
to constitutional requirements and explicitly states that errors
of constitutional magnitude may require a higher standard than
the general one required by Rule 103(a). For example, the harmless
error rule, when applicable to an error of constitutional dimensions,
prevails over the general rule of Rule 103(a). Because
Section III of these Rules embodies constitutional rights, two
standards of error may be at issue; one involving the Military
Rules of Evidence, and one involving the underlying constitutional
rule. In such a case, the standard of error more advantageous
to the accused will apply.
R u l e 1 0 3 ( a ) ( 1 ) r e q u i r e s t h a t a t i m e l y m o t i o n o r o b j e c t i o n
generally be made in order to preserve a claim of error. This is
similar to but more specific than prior practice. In making such a
motion or objection, the party has a right to state the specific
grounds of the objection to the evidence. Failure to make a timely
and sufficiently specific objection may waive the objection for
p u r p o s e s o f b o t h t r i a l a n d a p p e a l . I n a p p l y i n g F e d e r a l R u l e
103(a), the Article III courts have interpreted the Rule strictly and
held the defense to an extremely high level of specificity. See,
e.g., United States v. Rubin, 609 F.2d 51, 61-63 (2d Cir. 1979)