CAAF has issued an opinion in United States v. Campos, __ M.J. ____ (C.A.A.F. 2009). The court was unanimous, although Judge Baker filed a separate concurring opinion.
This is an opinion that essentially discusses the inadmissible evidence thrust down an accused’s throat through a stipulation as part of a pretrial agreement. Basically, if you stipulate, even to inadmissible unreliable evidence you are likely stuck on a waiver theory. Although it does appear in this case that there was no consent to admissibility in the stipulation, just what the testimony would be. So the accused could have objected at trial. But CAAF found a knowing waiver of an objection.
Interestingly the concurring opinion addresses the most troubling issue in the case. The stipulated testimony of an expert, who’d not evaluated the accused, included a sentence recommendation which is verboten under United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989). Judge Baker resolved his qualms on the legal fiction that the sentence and the recommended sentence must have been serendipitous, because judge’s are presumed to know and apply the law correctly.
It’s always difficult when negotiating to decide what to do about stipulations. The prosecution has become emboldened over the years to ask for more and more in stipulations, I suspect that there’s at least one out there has the accused stipulate that he routinely jaywalked as a child. A not guilty plea or a naked plea is an easy way to avoid the problem. .