How often does the prosecution proffer evidence and then when challenged make a formulaic and broad talismanic incantation of “admissibility.” (Or according to the M-W dictionary: trying to produce a miracle by incantation.)
When the defense objects to certain evidence or testimony it is perfectly proper for the prosecution to say Mil. R. Evid. 404(b), or 803(1). However, you must close them down after that, in a members case. Don’t let them get past the initial proper incantation by arguing admissibility in front of the members. You just let them put one over and make the point to the members even if the judge rules in your favor. Don’t forget that it’s almost impossible to throw a skunk into the members box and tell them not to smell it.
So what happens when the military judge then asks for reasons the evidence or testimony is admissible. Commonly the prosecutor will continue the talismanic incantation, for example: “it’s evidence of intent or motive,” or “it’s a excited utterance.” Maybe. But they have to do more and you should make them do more than recite the rule. Make them be specific on how the evidence makes the point, how it is relevant, and how it is not barred by application of Mil. R. Evid. 403. Specificity is required.
This comes up in Mil. R. Evid. 404(b) issues all the time, but there are other “lessons” from the prosecutions formulaic incantations of hearsay exceptions under Mil. R. Evid. 803(1) – (3).
Sometimes the easiest route to solving a hearsay problem does not necessarily involve a direct assault on the alleged hearsay statement, for example seeing if it could fit a qualifying exception from the operation of FRE 402 (Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible). Often, evidence which does not qualify under a hearsay exception will also fail the test of admissibility on other grounds as well, such as lack of relevance or having a probative value substantially outweighed by its potential prejudicial effect. An interesting example of this observation is reflected by a First Circuit case decided in 2009.
So says federalevidencereview blog.