Second trial counsel

At this point, the military judge interjected and asked 11 foundational questions of the witness. The questions were limited to Major D’s past service as an enlisted Marine in the same MOS as the appellant, his supervisory responsibilities as a Marine Corps gunnery sergeant within that MOS, the total number of years he served within the MOS, and the duties generally assigned within the MOS. Defense counsel did not object to any of the 11 questions asked by the military judge.

The NMCCA did not find the military judge’s laying a foundation for admissibility deprived the accused of a fair trial, in United States v. Davis, NMCCA 200900406 (N-M.C. Ct. Crim. App.  15 December 2009).  The court did not opine on why the trial counsel was unprepared to lay a foundation for the witnesses testimony, but did consider the failure of the defense to object as adverse to the accused.

Bottom line to the case:  trial counsel need not prepare to lay a foundation for witness testimony or documents, because if they don’t the military judge will do it for them.  Teaching point, trial counsel need not be aware of the rules for admission of testimony and laying a foundation, and they need not interview and prepare their witness in advance of trial.

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