Preserving error

A trial is intended to be a win at the trial level.  Good trial lawyers never litigate just for an appeal, but at the same time must remember to preserve error for appellate review in case.

The Military Rules of Evidence allow for admission of obectionable hearsay (evidence) in some situations.  Usually that is a situation where there are multiple reasons why some evidence is objectionable, but there are one or more of the reasons could allow for admission.  As an example from the recent posting,

What steps should a party take to ensure there is an appropriate record to preserve evidence error for appellate review? When is an objection sufficient to clarify the basis of the objection? The Seventh Circuit recently considered these issues in the context of whether challenged testimony was hearsay or offered to explain the defendant’s understanding. The issue was considered twice in an appeal, including an opinion that was amended, in in United States v. Leonard-Allen, __ F.3d __ (7th Cir. Aug. 29, 2013) (Nos. 12–3299, 12–3663)

The disposition of United States v. Leonard-Allen in the Seventh Circuit suggests some of the difficulties that can be encountered in assessing if a claimed evidence error has been preserved for review. In the first July 30, 2013 opinion, the Seventh Circuit vacated and remanded a defendant’s money laundering conviction, noting that the exclusion of the defendant’s testimony about his purpose in taking the actions later charged as money laundering improperly applied the rule against hearsay.

When the prosecution offers evidence with multiple reasons for admission, and objection needs to be clear on ALL of the reasons.  Likewise, you may have a number of reasons why evidence is admissible, and you need to be clear in stating and arguing all of the reasons.  Should the military judge allow for a limited reason, it is necessary to make sure the military judge gives a limiting instruction.  A failure to do all of this may lead to waiver or failure on appeal.

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