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

(2) Weight of the evidence. Rule 304(e)(2) allows the defense
to present evidence with respect to voluntariness to the members
for the purpose of determining what weight to give the statement.
When trial is by judge alone, the evidence received by the military
judge on the question of admissibility also shall be considered
by the military judge on the question of weight without the
necessity of a formal request to do so by counsel. Additional
evidence may, however, be presented to the military judge on the
matter of weight if counsel chooses to do so.
(3) Derivative evidence. Rule 304(e)(3) recognizes that derivative
evidence is distinct from the primary evidence dealt with by
Rule 304, i.e., statements. The prosecution may prove that notwithstanding
an involuntary statement, the evidence in question
was not “obtained by use of” it and is not derivative.
February 1986 Amendment: Because of the 1986 addition of
Rule 304(b)(2), the prosecution may prove that, notwithstanding
an involuntary statement, derivative evidence is admissible under
the “inevitable discovery” exception. The standard of proof is a
preponderance of the evidence (Nix v. Williams, 467 U.S. 431,
104 S.Ct. 2501 (1984)).
(f) Defense evidence. Rule 304(f) generally restates prior law as
found in Para. 140 a(3) & (6), MCM, 1969 (Rev.). Under this
Rule, the defense must specify that the accused plans to take the
stand under this subdivision. This is already normal practice and
is intended to prevent confusion. Testimony given under this
subdivision may not be used at the same trial at which it is given
for any other purpose to include impeachment. The language, “the
accused may be cross-examined only as to matter on which he or
she so testifies” permits otherwise proper and relevant impeachment
of the accused. See, e.g., Rule 607–609; 613.
(g) Corroboration. Rule 304(g) restates the prior law of corroboration
with one major procedural change. Previously, no instruction
on the requirement of corroboration was required unless the
evidence was substantially conflicting, self-contradictory, uncertain,
or improbable and there was a defense request for such an
i n s t r u c t i o n . U n i t e d S t a t e s v . S e i g l e , 2 2 U . S . C . M . A . 4 0 3 , 4 7
C.M.R. 340 (1973). The holding in Seigle in consistent with the
1969 Manual’s view that the issue of admissibility may be decided
by the members, but it is inconsistent with the position
taken in Rule 304(d) that admissibility is the sole responsibility of
the military judge. Inasmuch as the Rule requires corroborating
evidence as a condition precedent to admission of the statement,
submission of the issue to the members would seem to be both
unnecessary and confusing. Consequently, the Rule does not follow
Seigle insofar as the case allows the issue to be submitted to
the members. The members must still weigh the evidence when
determining the guilt or innocence of the accused, and the nature
of any corroborating evidence is an appropriate matter for the
members to consider when weighing the statement before them.
The corroboration rule requires only that evidence be admitted
which would support an inference that the essential facts admitted
in the statement are true. For example, presume that an accused
charged with premeditated murder has voluntarily confessed that,
intending to kill the alleged victim, she concealed herself so that
she might surprise the victim at a certain place and that when the
victim passed by, she plunged a knife in his back. At trial, the
prosecution introduces independent evidence that the victim was
found dead as a result of a knife wound in his back at the place
where, according to the confession, the incident occurred. This
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 304(h)(3)
fact would corroborate the confession because it would support an
i n f e r e n c e o f t h e t r u t h o f t h e e s s e n t i a l f a c t s a d m i t t e d i n t h e
confession.
(h) Miscellaneous.
(1) Oral statements. Rule 304(h)(1) is taken verbatim from
1969 Manual paragraph 140 a(6). It recognizes that although an
oral statement may be transcribed, the oral statement is separate
and distinct from the transcription and that accordingly the oral
statement may be received into evidence without violation of the
best evidence rule unless the specific writing is in question, see
Rule 1002. So long as the oral statement is complete, no specific
rule would require the prosecution to offer the transcription. The
defense could of course offer the writing when it would constitute
impeachment.
(2) Completeness. Rule 304(h)(2) is taken without significant
change from 1969 Manual paragraph 140 a(6). Although Rule
106 allows a party to require an adverse party to complete an
otherwise incomplete written statement in an appropriate case,
Rule 304(h)(2) allows the defense to complete an incomplete
statement regardless of whether the statement is oral or in writing.
As Rule 304(h)(2) does not by its terms deal only with oral
statements, it provides the defense in this area with the option of
using Rule 106 or 304(h)(2) to complete a written statement.
(3) Certain admission by silence. Rule 304(h)(3) is taken from
Para. 140 a(4) of the 1969 Manual. That part of the remainder of
Para. 140 a(4) dealing with the existence of the privilege against
self-incrimination is now set forth in Rule 301(f)(3). The remainder
of Para. 140 a(4) has been set forth in the Analysis to
subdivision (d)(2), dealing with an admission by silence, or has
been omitted as being unnecessary.
1986 Amendment: Mil. R. Evid. 304(h)(4) was added to make
clear that evidence of a refusal to obey a lawful order to submit
to a chemical analysis of body substances is admissible evidence
when relevant either to a violation of such order or an offense
which the test results would have been offered to prove. The
Supreme Court in South Dakota v. Neville, 459 U.S. 553 (1983)
held that where the government may compel an individual to
submit to a test of a body substance, evidence of a refusal to
submit to the test is constitutionally admissible. Since the results
of tests of body substances are non-testimonial, a servicemember
has no Fifth Amendment or Article 31 right to refuse to submit to
such a test. United States v. Armstrong, 9 M.J. 374 (C.M.A.
1980); Schmerber v. State of California, 384 U.S. 757 (1966). A
test of body substances in various circumstances, such as search
incident to arrest, probable cause and exigent circumstances, and
inspection or random testing programs, among others, is a reasonable
search and seizure in the military. Murray v. Haldeman, 16
M.J. 74 (C.M.A. 1983); Mil. R. Evid. 312; Mil. R. Evid. 313.
Under the Uniform Code of Military Justice, a military order is a
valid means to compel a servicemember to submit to a test of a
body substance. Murray v. Haldeman, supra. Evidence of a refusal
to obey such an order may be relevant as evidence of
consciousness of guilt. People v. Ellis, 65 Cal.2d 529, 421 P.2d
393 (1966). See also State v. Anderson, Or.App., 631 P.2d 822
(1981); Newhouse v. Misterly, 415 F.2d 514 (9th Cir. 1969), cert.
denied 397 U.S. 966 (1970).
This Rule creates no right to refuse a lawful order. A servicemember
may still be compelled to submit to the test. See,
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