Sunday, April 27, 2008

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.


John O'Connor said...

CAAF's explanation is that "foundation" is a vague and general obection, and the DC's voir dire appears to be solely directed to whether the witness had personal knowledge as to the correctness of every figure on the chart. This, to CAAF, could make it unclear that the defense is objecting to the general 1006 factors, and instad was claiming lack of foundation that the witness had actual knowledge of he calculations, an objection that is not meritorious. In context, that seems right to me.

The lesson here is that counsel cannot just blurt out foundation and expect it to cover matters they didn't argue or develop. Though it doesn't appear to be the case here, as the DC had a line of specific objection he/she pursued, but I have found that in both civilian and military practice some counsel just say "foundation" when they have no idea what they want to object to and hope the judge will do their work for them.

Brian said...

MRE 1006 has certain foundational requirements (that the proponent of a summary: make the source documents available; demonstrate the source documents' admissibility; identify the evidence as a summary). Trial counsel failed to meet any of those foundational requirements. Therefore, regardless of tdc's voir dire questions, the foundational objection should have been adequate.

John O'Connor said...

Every bit of evidence has a foundation requirement. But lots of evidence goes in without a foundation being laid because it's not objected to. I think the lesson here is that you can't just blurt out "foundation" without being more specific because you run the risk that you will have forfeited any foundational issues that are not developed during your argument or voir dire. Here, the DC's focus was entirely on the issue of personal knowledge, and CAAF held that it was reasonable for the MJ to believe that this was the defense's beef with the evidence presented.

The idea that just saying "foundation" is enough to preserve all issues is not far from something like this, which would not be a productive state of the law:

DC: Objection, foundation.

MJ: What's wrong with the foundation, counsel?

DC: Not my burden, so I'm not going to say.

MJ: Okay, let me consider every possible foundational argument in order to determine whether the proponent has met his burden.

I read Reynoso as saying the DC more or less identified his/her foundational beef with the voir dire questioning.

Anonymous said...

Reynoso demonstrates CAAF continues to move away from its former paternalistic efforts to act as a second DC. Reynoso's DC objected on "foundation" The MJ gave the DC a chance to voir dire. After voir dire on a very focused area chosen by the DC, the DC did not make a more specific objection citing MRE 1006. Bravo Zulu to the MJ for not taking over for either party, but letting them litigate and Bravo Zule to CAAF for letting the DC sleep in the bed he made.

John O'Connor said...


You said: "Bravo Zulu to the MJ for not taking over for either party, but letting them litigate and Bravo Zule to CAAF for letting the DC sleep in the bed he made."

If CAAF thought that the MJ reasonably should have known that trial defense counsel was making the samer "foundational" objection Reynoso's appellate defense counsel made on appeal, but let the evidence in because the DC had not fully developed the argument on voir dire (or out of a desire not to "step in" for either party), I think the result would have been different.

I read Reynoso as being based on the conclusion that the MJ reasonably could not have been expected to perceive the defense's objection as being anything other than an objection of lack of personal knowledge. On that basis, I thinkl the result is perfectly reasonable.

Phil Cave said...

I agree with CAAFLog, cite a laundry list of specific objections and Rules.

Also, TJASA needs to educate the military judges not to get upset with counsel when they do this. Counsel has been told, warned, and criticized by CAAF for not doing it. Sorry if it takes up too much time and transcript.

Jeffrey said...

This case was one of mine, ably argued by one of the new guys at NAMARA. I've raised plain error assignments of error for this type of bogus, derivative evidence before and have always been quickly shot down. The part about Reynoso that bothers me is that it seems to say that admitting this kind of evidence can never be "plain error" -- no matter how much the evidentiary fountations are lacking -- because the record will not be developed.

Anonymous said...

Under Reynoso, a TC can stumble aimlessly through the admission of evidence, without a clue as to which evidentiary rule applies. The DC, then -- in order to properly preserve an objection -- will need to explain to both the TC (and the MJ) what the proper rule is, and precisely where the foundation is deficient.

Functionally, this will allow the TC to correct the blunder, and properly admit the evidence under the correct rule. Reynoso, therefore, is essentially requiring the DC to explain how to defeat her own objection, and assist the TC in admitting evidence against her own client.

Are there any creative appellate counsel out there that think they can turn this into an IAC? What if the following scenario transpires: The smoking gun is objected to on "foundation," and the DC properly preserves the issue by clearly explaining the deficiency, which allows the TC to correct the error and ultimately admit the smoking gun. Would it not be IAC for a senior litigator to explain to the junior TC -- on the record -- how to admit the smoking gun against her own client (under a requirement from CAAF no less!)?

Maybe next time CAAF visits this issue, they will just eliminate the rules of evidence altogether. All they do is make the TC's job more difficult anyhow.