Notice, what is it?

Various rules in the R.C.M. and the Military Rules of Evidence require notice to the other side.

Some rules are explicit, for example Mil. R. Evid. 412 requires notice no less than five days “before entry of pleas”, unless the military judge sets an earlier time.  Mil. R. Evid. 412(c)(1)(A), or see Mil. R. Evid. 413(b).  Other rules are less rigid in when notice must be given.  For example Mil. R. Evid. 902(11) or 609(b) , require notice with enough time for the opposing counsel to have “a fair opportunity to contest the use of the evidence.”

Included with the opportunity to contest is time to investigate.

I recently had, as frequently happens, a 902(11) certification provided at 1800 the night before trial was to start. Of course the person who signed the certification had left for the day.  The next morning, the day of trial, I left voice mails.

The military judge wasn’t interested in the failure to provide timely notice as an objection (even though we’d had other rolling (read delayed) discovery in the days and hours before trial).

When I finally got through to the individual, they declined to talk with me without a release from the client – even though they’d provided the documents to trial counsel without a subpoena or release.

Well, in Doyle v. Denver Dept. of Human Services, the trial court sustained an objection to a late “notice” on both notice and 403 grounds.  Unfortunately no new trial, because there was exclusion of the “evidence” and a “curative” instruction.

One of these days a military judge will hold the trial counsel to the rules.  Until then objections need be raised not just to evidence but the timing of the disclosure.  There’s very little excuse for trial counsel to be providing certifications on documents the night before trial, especially when in that process they are deliberately flouting the military judge’s scheduling order.

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