Can there be a foul but no harm

In British football, a player can commit a foul which is technical and the other team gets a free kick, and everyone keeps playing.  More serious fouls can result in a yellow card (two in a game and you are off the field) or a red card which means immediate removal from the field.  Well, that’s now the rule for suppression motions in the military.

Why?  On May 20, 2016, there was a change to Mil. R. Evid. 311.  Now the military judge has to decide if the application of the exclusionary rule in the case of an unlawful search or seizure unless the military judge finds no deterrent effect of exclusion against the interests to be protected.

In a new appellate case from the Navy-Marine Corps Court of Criminal Appeals, United States v. Mottino, No. 201700153, 2017 CCA LEXIS 495 (N-M. Ct. Crim. App. Jul. 27, 2017) (unpub.), a three-judge panel of the Navy-Marine Corps CCA granted a prosecution appeal and reversed the military judge’s ruling suppressing evidence.  They ruled that way because the military judge failed in her analysis and application of the law by not conducting the balancing test under Mil. R. Evid. 311(a)(3).  This was a government appeal of the military judge’s ruling to exclude evidence.  So the court remanded the case back to the trial judge so the parties and judge do get a do-over.

On the first bite, “the military judge concluded that “[s]uppression will serve the exclusionary rule’s goal of deterrence,” her ruling is devoid of any analysis regarding prong three. She did not quantify how appreciable that deterrence is, nor did she balance the benefits of such deterrence against the costs to the justice system, as required by Mil. R. Evid. 311(a)(3).

Unclear to me at the moment which side has the burden to show there is or isn’t a deterrent effect, and by what standard–some evidence, by a preponderance, or clearly and convincingly?  Is the burden on the defense or the prosecution?

Hopefully, future litigation will determine this.

Got such an issue in your case?  Give me a bell at 703-298-9562, or send an email.