U.S. v. Datz, 61 M.J. 37

Core Criminal Law Subjects: Evidence: Hearsay › Adoptive Admissions

1. under FRE 801(d)(2)(B) and MRE 801(d)(2)(B), a statement is excepted from the general hearsay rule when it is one that has been offered against a party who has manifested an adoption or belief in its truth; an adoptive admission can be accomplished through nonverbal means, such as a hand or head motion; the text of the rule does not explicitly incorporate body gestures, but neither does it preclude such admissions
2. when a statement is offered as an adoptive admission, the proponent must present sufficient proof to support a finding that the party against whom the statement is offered heard, understood, and acquiesced in the statement
3. the foundational requirements for admitting adoptive admissions are a showing that (1) the party against whom it is offered was present during the making of the statement; (2) he understood its content; and (3) his actions or words or both unequivocally acknowledged the statement in adopting it as his own
4. in this case, the government did not meet its foundational burden of demonstrating that the accused understood and acquiesced in the alleged adoptive admissions before they were admitted into evidence, where there was an ambiguity as to the actual questions asked of the accused by the interrogator, and where the questions asked of the accused, even if they were recalled exactly as given, were ambiguous because they contained compound elements
5. adoptive admissions in context can present uncertain and ambiguous applications of the law of evidence, which are not solely questions of fact for the fact-finder; in this case, the fourth adoptive admission was tantamount to a confession of rape, but without the indicia of reliability of a written confession signed by the accused; in light of this record, where the government presented the victim’s testimony and the alleged adoptive admissions and no other direct evidence of rape, we cannot say with fair assurance that the testimony regarding the accused’s adoptive admissions did not have substantial influence on the panel’s decision
6. the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him; here the alleged adoptive admissions rested upon an interrogator’s interpretation of body language; without some additional written, verbal, or video confirmation, this amounted to a confession by gesture of a critical element of the offense -- and the only contested element of the offense; gestures and reactions vary from person to person under the pressure of interrogation; as a result, the military judge’s decision to admit the evidence of the accused’s head nodding without adequate foundation was prejudicial error

Core Criminal Law Subjects: Evidence: Waiver

1. under MRE 103, in order to preserve an objection when the ruling is one admitting evidence, the objecting party must make a timely objection or motion to strike in the record, stating the specific ground of the objection, if the specific ground was not apparent from the context; the rule also provides that 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
2. in the present context, we believe the defense counsel met his burden under MRE 103 and preserved an objection to the admission of alleged adoptive admissions by the accused, despite his failure to cite to the specific evidentiary rule governing admission of adoptive admissions, MRE 801(d)(2)(b); here, the defense counsel’s argument addressed the issue of adoptive admissions generally and specifically raised concerns about whether the accused’s nodding during his interrogation adopted the admissions posed by his interrogator
3. in objecting to the admission of evidence, a party is not necessarily required to refer to a specific rule by citation, but the party is required to provide sufficient argument to make known to the military judge the basis of his objection and, where necessary to support an informed ruling, the theory behind the objection
4. on its face, MRE 103 does not require the moving party to present every argument in support of an objection, but does require argument sufficient to make the military judge aware of the specific ground for objection, if the specific ground was not apparent from the context; here counsel’s objection to the adoptive admissions was brought to the attention of the military judge; to require counsel for either side to identify all available arguments in support of his or her objection is unnecessary in a context where the military judge is presumed to know the law and follow it; in the heat of trial, where counsel face numerous tactical decisions and operate under time pressure, we do not require such elaboration to preserve error on appeal

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s ruling on admissibility of evidence is reviewed for abuse of discretion; in order to be overturned on appeal, the judge’s ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous, or influenced by an erroneous view of the law