Trial defense counsel beware: CAAF puts the burden on you to identify particular foundational deficiencies in the government's evidence

United States v. Reynoso, __ M.J. ___, No. 07-0221 (C.A.A.F. Apr. 25, 2008), explores the little-developed area of the admissibility of summaries under Military Rule of Evidence 1006.

Reynoso was a BAH fraud prosecution. Sgt Reynoso was stationed in Okinawa. He filled out a form indicating that his wife was in San Francisco, one of the highest-cost housing markets in the country. But according to the government's evidence, she was actually living in Virginia Beach, Virginia. The opinion doesn't tell us the precise difference in BAH at the time of the offenses, but the BAH for a married E-5 in San Francisco today is $2512 -- almost twice the BAH for Virginia Beach.

During the government's case, it presented the testimony of a personnel administration expert, who had compiled a chart based on DFAS data presenting information about BAH and COLA rates for San Francisco and Virginia Beach. The government moved to admit the chart into evidence. The defense objected, making a generic "foundation" objection. Not good enough, ruled CAAF.

At CAAF, the defense challenged the chart's admissibility by specifically arguing that "it was a summary of the source documents on the DFAS website, and the Government did not lay a proper foundation under M.R.E. 1006 to admit the summary." Id., slip op. at 5. The defense also argued that the information on the DFAS website was itself hearsay and thus inadmissible. Id.

CAAF first considered whether the generic "foundation" objection was sufficient to preserve these objections. No, ruled CAAF. CAAF held that by simply stating, "Objection on foundation," the trial defense counsel had "forfeited the claim of error [Appellant] now asserts." Id., slip op. at 7.

Having found forfeiture desipte the foundational objection, CAAF then assessed whether the chart's admission was plain error. No, held CAAF.

The government maintained that the chart was admissible under Military Rule of Evidence 1006, which provides, in relevant part: "The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation." CAAF noted that in "federal civilian practice, summary evidence is admissible under Fed. R. Evid. 1006 only if the underlying materials upon which the summary is based are admissible." Id., slip op. at 8. But CAAF recognized an exception to this rule followed by federal courts and included in the Military Rules' drafters' analysis: "It is possible for a summary that is admissible under Rule 1006 to include information that would not itself be admissible if that information is reasonably relied upon by an expert preparing the summary." Id. (quoting Manual for for Courts-Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22-60 (2005 ed.)).

Because the witness who prepared the chart had already been qualified as an expert in personnel administration and "had stated that he had relied on the DFAS website to compile the information," under Military Rule of Evidence 1006 the chart "might have been admitted under this expert witness exception." Id. at 9. CAAF concluded: "[S]ince PE 6 was not clearly inadmissible, in the absence of a more specific objection and some indication on the record that the foundational elements of M.R.E. 1006 were not met, there was no plain error in admitting it." Id.

But here is the part of the opinion that gives me heartburn: "[H]ad there been an objection specific to M.R.E. 1006, the parties could have litigated before the military judge the fairly detailed foundation for the admissibility of such evidence." Id. The opinion then observes in a footnote: "For instance, the proponent might or might not have been able to show: the originals or duplicates of the originals would be admissible; the originals or duplicates were too numerous or too voluminous to be conveniently introduced during trial; the relevant fact was a summary of the record's contents; the opponent was granted access to the originals or duplicates for inspection; or, the witness personally reviewed all the records or was a member of a team of experts who reviewed the records." Id., slip op. at 9 n. 9.

Now, I honestly assume that I am overlooking something since Reynoso is a unanimous opinion. The CAAF judges have each spent dozens more hours examining this case than have I, so if I were correct that there is a problem in the analysis, surely one of the five would have discovered it long before I did. So someone please give me metaphorical Mylanta for my Reynoso heartburn by explaining why the following analysis is wrong:

1. "The proponent of the evidence has the burden of showing admissibility." United States v. Shover, 45 M.J. 119, 122 (C.A.A.F. 1996).

2. The government was the chart's proponent.

3. The defense objected to the chart's foundation.

4. Therefore, it was the government's burden as the chart's proponent to lay a foundation for its admissibility rather than the defense's burden to identify particular defects in its evidentiary foundation.

But even in the unlikely event that my objection has legal merit, Reynoso is the law and trial defense counsel had better be prepared to deal with its implications. And the opinion's lesson for trial defense counsel is clear: less is not more. Military judges can generally get away with failing to provide any analysis to support their rulings on evidentiary objections. See, e.g., United States v. Postle, 20 M.J. 632, 638 (N.M.C.M.R. 1985)) ("it is not required that a military judge explain his ruling admitting evidence during the trial on the merits"). But apparently the trial defense counsel must make a detailed objection identifying specific defects under the MREs or risk having any objection treated as forfeited. The wise trial defense counsel will now show up in court with an evidentiary checklist to tick off various authenticity, hearsay, and specific foundational objections. LexisNexis's Military Evidentiary Foundations provides helpful guidance.