Preadmitting evidence

We all have been in the position of filing motions in-limine to admit or object to the admission of evidence. I do this frequently for its efficiency and help in forming my case as we advance. There are times when counsel, usually trial counsel, wants to preadmit evidence.

There are times I do not object to preadmission and times I object. A primary reason to preadmit evidence is for use in opening statements. Here is my thought on why counsel might object to preadmission.

The military judge erred in pre-admitting Prosecution Exhibit 1, photos alleged to have been of the complaining witness at an earlier age, and Appellant was prejudiced when trial counsel published the exhibit to the members during opening statement. The military judge put his imprimatur on the evidence before the defense had the opportunity to cross-examine the witness in front of the fact-finder. Later examination does not avoid the combined effect of the military judge’s imprimatur, the primacy and recency effect (which we are all trained about); and the human tendency to solidify in an opinion formed early on (cognitive dissonance).

R.C.M. 906(b)(13) permits only a “preliminary ruling of admissibility,” not admission of the evidence outside the presence of the fact-finder. When the military judge admitted the exhibit jeopardy arguably attached. See United States v. Easton, 71 M.J. 168, 172 (C.A.A.F. 2012) (jeopardy attaches when the evidence is introduced).

United States v. Bess, 75 M.J. 70 (C.A.A.F. 2016), supports me in objecting to preadmission. See also, Why People Stubbornly Refuse to Change Their Minds.

I may be raising a small nit, but such a small nit can be consequential by experience. So here you follow the principle–that I am going to tell you what you will know (opening statements), here’s is what you now know (the actual presentation of the evidence); and here is what I told you, in the beginning, you would know to be true–see it is true (closing argument).

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