U.S. v. Toy, 65 M.J. 405

Core Criminal Law Subjects: Evidence: Generally

1. federal law rather than state law governs the admissibility of evidence in federal courts; the exclusive application of federal law is expressly and implicitly provided for within the structure of the UCMJ; likewise, the corresponding Military Rules of Evidence are intended to provide a uniform standard of justice to members of the armed forces, regardless of where they are stationed or in which armed force they serve

Core Criminal Law Subjects: Evidence: Search and Seizure › Wiretaps

1. under MRE 317(a), wire or oral communications constitute evidence obtained as a result of an unlawful search or seizure within the meaning of MRE 311 when such evidence must be excluded under the Fourth Amendment to the Constitution of the United States as applied to members of the armed forces or if such evidence must be excluded under a statute applicable to members of the armed forces
2. 18 USC §§ 2510-2522 address electronic surveillance in general, including surveillance conducted under color of law for criminal law enforcement purposes and surveillance not conducted under color of law; with the enactment of 18 USC §§ 2510-2522, and through the operation of the Supremacy Clause and the preemption doctrine, Congress has defined the relationship between federal and state law in the area of oral and wire intercepts
3. 18 USC § 2511(d)(2) provides that it shall not be unlawful for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state
4. MRE 317, as a whole, is clearly intended to operate within the congressional scheme set forth under 18 USC §§ 2510-2522
5. MRE 317(a), the military evidence rule excluding wire or oral communications “if such evidence must be excluded under a statute applicable to members of the armed forces,” does not directly incorporate state law in determining an unlawful interception of an oral or wire communication; however, it may implicate state law through the operation of the federal wiretap law applicable to servicemembers, because 18 USC § 2511(2)(d), which makes it unlawful for a person to intercept a communication with the purpose of committing a criminal or tortious act in violation of state law, may, in context, implicate state law
6. MRE 317 applies to evidence that “must” be excluded by “a statute applicable to members of the armed forces;” 18 USC § 2511 is a federal statute of general application without military exception; as a result, to the extent it is generally applicable, it applies as well to members of the armed forces; under this section, it is not unlawful for a person not acting under color of law to intercept a communication if that person is a party to the conversation or where one of the parties to the conversation has given consent; nonetheless, in such circumstances, it is unlawful, if the communication is intercepted with the purpose of committing a criminal or tortious act in violation of a state law; the text of 18 USC § 2511(2)(d) conclusively demonstrates that Congress sought to limit unlawful conduct to situations where the individual had the specific intent or purpose to violate state law when that individual acted; otherwise, the language addressing purpose would be superfluous; if Congress had wanted to except criminal conduct in the absence of specific intent, it could and would have done so without the additional “purpose” language
7. audiotape and videotape taken of appellant by his wife were not excludable under MRE 317(a), a military evidence rule excluding such evidence if it must be excluded under a statute applicable to servicemembers, notwithstanding appellant’s contention that the tapes were excludable under the federal wiretap statute because they were made with the purpose of committing a criminal act in violation of the Hawaii intercept statute, absent evidence that wife had the specific intent to violate state law when she made the recordings

Core Criminal Law Subjects: Evidence: Waiver

1. MRE 103(a)(1) requires a party to make a timely objection stating the specific ground of objection, if the specific ground was not apparent from the context; the rule does not require a party to advance every literal argument in support of his objection; however, a party is required to provide sufficient argument to make known to the military judge the basis of that party’s objection and, where necessary to support an informed ruling, the theory behind the objection