U.S. v. Ahern, 76 M.J. 194

Core Criminal Law Subjects: Evidence: Generally

1. it is well established that principles of statutory construction are used in construing the Military Rules of Evidence
2. MRE 105 places primary if not full responsibility upon counsel for objecting to or limiting evidence

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Admission by silence

1. MRE 304(a)(2) provides that failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing
2. MRE 304(f)(1) plainly states that claims arising under MRE 304(a)(2) are waived absent an objection; this is not a case where the rule uses the word “waiver” but actually means “forfeiture;” MRE 304(f)(1) does not mention plain error review, and instead unambiguously provides that any claim arising under MRE 304 is waived absent an objection

Core Criminal Law Subjects: Evidence: Waiver

1. deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal
2. whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right
3. whether a particular right is waivable; whether an accused must participate personally in the waiver; whether certain procedures are required for waiver; and whether an accused’s choice must be particularly informed or voluntary, all depend on the right at stake
4. MRE 304(f)(1) plainly states that claims arising under MRE 304(a)(2) are waived absent an objection; this is not a case where the rule uses the word “waiver” but actually means “forfeiture;” MRE 304(f)(1) does not mention plain error review, and instead unambiguously provides that any claim arising under MRE 304 is waived absent an objection
5. under the clear dictates of MRE 304(f)(1), at a GCM for the offense of aggravated sexual assault of a child, appellant’s failure to object to the admission of the content of telephone calls from his wife in which he failed to deny allegations of wrongdoing waived his right to object to their admission on appeal; moreover, under the ordinary rules of waiver, appellant’s affirmative statements that he had no objection to their admission also operated to extinguish his right to complain about their admission on appeal; appellant not only waived his right to object to the admission of the phone calls but to their use during the prosecution’s argument on findings when the prosecution argued that appellant’s silence in response to his wife’s accusations indicated his guilt, and appellant still raised no objection

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

1. whether an accused has waived an issue is a question of law that an appellate court review de novo

Trial Stages: Appeals: Waiver

1. deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal
2. whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right
3. whether a particular right is waivable; whether an accused must participate personally in the waiver; whether certain procedures are required for waiver; and whether an accused’s choice must be particularly informed or voluntary, all depend on the right at stake
4. MRE 304(f)(1) plainly states that claims arising under MRE 304(a)(2) are waived absent an objection; this is not a case where the rule uses the word “waiver” but actually means “forfeiture;” MRE 304(f)(1) does not mention plain error review, and instead unambiguously provides that any claim arising under MRE 304 is waived absent an objection
5. under the clear dictates of MRE 304(f)(1), at a GCM for the offense of aggravated sexual assault of a child, appellant’s failure to object to the admission of the content of telephone calls from his wife in which he failed to deny allegations of wrongdoing waived his right to object to their admission on appeal; moreover, under the ordinary rules of waiver, appellant’s affirmative statements that he had no objection to their admission also operated to extinguish his right to complain about their admission on appeal; appellant not only waived his right to object to the admission of the phone calls but to their use during the prosecution’s argument on findings when the prosecution argued that appellant’s silence in response to his wife’s accusations indicated his guilt, and appellant still raised no objection