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

Rule 613 Prior statements of witnesses
(a) Examining witness concerning prior statement. Rule 613(a) is
taken from the Federal Rule without change. It alters military
practice inasmuch as it eliminates the foundation requirements
found in Para. 153 b(2)(c) of the 1969 Manual. While it will no
longer be a condition precedent to admissibility to acquaint a
witness with the prior statement and to give the witness an opportunity
to either change his or her testimony or to reaffirm it, such
a procedure may be appropriate as a matter of trial tactics.
It appears that the drafters of Federal Rule 613 may have
inadvertently omitted the word “inconsistent” from both its caption
and the text of Rule 613(a). The effect of that omission, if
any, is unclear.
(b) Extrinsic evidence of prior inconsistent statement of witness.
Rule 613(b) is taken from the Federal Rule without change. It
requires that the witness be given an opportunity to explain or
deny a prior inconsistent statement when the party proffers extrinsic
evidence of the statement. Although this foundation is not
required under Rule 613(a), it is required under Rule 613(b) if a
party wishes to utilize more than the witness’ own testimony as
brought out on cross-examination. The Rule does not specify any
particular timing for the opportunity for the witness to explain or
deny the statement nor does it specify any particular method. The
Rule is inapplicable to introduction of prior inconsistent statements
on the merits under Rule 801.
Rule 614 Calling and interrogation of witnesses
by the court-martial
( a ) C a l l i n g b y t h e c o u r t - m a r t i a l . T h e f i r s t s e n t e n c e o f R u l e
614(a) is taken from the Federal Rule but has been modified to
recognize the power of the court members to call and examine
witnesses. The second sentence of the subdivision is new and
reflects the members’ power to call or recall witnesses. Although
recognizing that power, the Rule makes it clear that the calling of
such witnesses is contingent upon compliance with these Rules
and this Manual. Consequently, the testimony of such witnesses
must be relevant and not barred by any Rule or Manual provision.
(b) Interrogation by the court-martial. The first sentence of Rule
614(b) is taken from the Federal Rule but modified to reflect the
power under these Rules and Manual of the court-members to
interrogate witnesses. The second sentence of the subdivision is
new and modifies Para. 54 a and Para. 149a of the present
manual by requiring that questions of members be submitted to
the military judge in writing. This change in current practice was
made in order to improve efficiency and to prevent prejudice to
either party. Although the Rule states that its intent is to ensure
that the questions will “be in a form acceptable to the military
judge,” it is not the intent of the Committee to grant carte blanche
to the military judge in this matter. It is the Committee’s intent
that the president will utilize the same procedure.
(c) Objections. Rule 614(c) is taken from the Federal Rule but
modified to reflect the powers of the members to call and interrogate
witnesses. This provision generally restates prior law but
recognizes counsel’s right to request an Article 39(a) session to
enter an objection.
Rule 615 Exclusion of witnesses
Rule 615 is taken from the Federal Rule with only minor
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 701
changes of terminology. The first portion of the Rule is in conformity
with prior practice, e.g., Para. 53 f, MCM, 1969 (Rev.).
The second portion, consisting of subdivisions (2) and (3), represents
a substantial departure from prior practice and will authorize
the prosecution to designate another individual to sit with the trial
counsel. Rule 615 thus modifies Para. 53 f. Under the Rule, the
military judge lacks any discretion to exclude potential witnesses
who come within the scope of Rule 615(2) and (3) unless the
accused’s constitutional right to a fair trial would be violated.
Developing Article III practice recognizes the defense right, upon
request, to have a prosecution witness, not excluded because of
Rule 615, testify before other prosecution witnesses.
Rule 615 does not prohibit exclusion of either accused or
counsel due to misbehavior when such exclusion is not prohibited
by the Constitution of the United States, the Uniform Code of
Military Justice, this Manual, or these Rules.
2002 Amendment: These changes are intended to extend to
victims at courts-martial the same rights granted to victims by the
Victims’ Rights and Restitution Act of 1990, 42 U.S.C. Sec.
10606(b)(4), giving crime victims ’[t]he right to be present at all
public court proceedings related to the offense, unless the court
determines that testimony by the victim would be materially affected
if the victim heard other testimony at trial,’ and the Victim
Rights Clarification Act of 1997, 18 U.S.C. Sec. 3510, which is
restated in subsection (5). For the purposes of this rule, the term
’victim’ includes all persons defined as victims in 42 U.S.C. Sec.
10607(e)(2), which means ’a person that has suffered direct physical,
emotional, or pecuniary harm as a result of the commission
of a crime, including’—(A) in the case of a victim that is an
institutional entity, an authorized representative of the entity; and
(B) in the case of a victim who is under 18 years of age, incompetent,
incapacitated, or deceased, one of the following (in order
of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent;
(iv) a child; (v) a sibling; (vi) another family member; or (vii)
another person designated by the court. The victim’s right to
remain in the courtroom remains subject to other rules, such as
those regarding classified information, witness deportment, and
conduct in the courtroom. Subsection (4) is intended to capture
only those statutes applicable to courts-martial.
SECTION VII
OPINIONS AND EXPERT TESTIMONY
Rule 701 Opinion testimony by lay witnesses
Rule 701 is taken from the Federal Rule without change and
supersedes that portion of Para. 138 e, MCM, 1969 (Rev.), which
dealt with opinion evidence by lay witnesses. Unlike the prior
Manual rule which prohibited lay opinion testimony except when
the opinion was of a “kind which is commonly drawn and which
cannot, or ordinarily cannot, be conveyed to the court by a mere
recitation of the observed facts,” the Rule permits opinions or
inferences whenever rationally based on the perception of the
witness and helpful to either a clear understanding of the testimony
or the determination of a fact in issue. Consequently, the
Rule is broader in scope than the Manual provision it replaces.
The specific examples listed in the Manual, “the speed of an
automobile, whether a voice heard was that of a man, woman or
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