APPLICABILITY OF THE RULES OF EVIDENCE

LEARNING OBJECTIVES: Explain how the rules of evidence apply at trial and in nonjudicial punishment proceedings.

In a trial, the rules of evidence may well determine whether or not the accused is convicted or acquitted. Without the rules of evidence, the outcome of trials would be inconsistent and the courtroom in chaos. Thus, these rules, which some choose to call "technicalities," are necessary for fairness, both to the government and to the accused.

The Military Rules of Evidence (MRE) do not apply to proceedings conducted under Article 15, UCMJ. However, paragraph 133b(3) of the MCM requires that the accused be advised of his or her rights against self-incrimination (Art. 31b) at mast or office hours. Although the MRE do not apply in nonjudicial punishment proceedings, the commanding officer should be assured that the information that provides the basis for imposition of nonjudicial punishment is reliable. But rule 101 of the Military Rules of Evidence does make the rules applicable to general, special, and summary courts-martial.

The purpose of a trial is to decide the "ultimate issue"; that is, the innocence or guilt of the accused with regard to particular charges and specifications. To resolve this issue, the government has the burden of proving the accused's guilt beyond a reasonable doubt by the introduction of facts.

Besides the ultimate issue of guilt or innocence, there are other issues that will arise at trial. For example, one right of the accused is to have access to the files of the government that pertain to his or her case. The law of evidence operates to guarantee that this right is observed. If the government has not allowed the defense to examine these files, the government may be prevented from introducing this information at trial.

Thus, without the law of evidence, the criminal trial as we know it would be a very disorderly proceeding. Without it, information received at trial would be unreliable, and many of the rights afforded an accused in a criminal proceeding would be denied.

POINTS OF INTEREST

LEARNING OBJECTIVES: Describe the two

major points of interest in a case. Define corpus delicti. Explain how intent, drunkenness, and negligence may affect the outcome of a trial. Describe the concept of presumption of innocence.

In every court proceeding, the prosecution must produce evidence to prove the following two major points, which constitute the issue in a case:

1. The offense charged was actually committed.

2. The person accused committed the illegal act.

Certain other elements also must be proven in some cases. For example, consider a case of larceny in which the accused is charged with stealing certain personal goods of value. The other element that must be proven is that the articles were taken fraudulently with the intent to permanently deprive the owner of possession.

CORPUS DELICTI

A consideration of the meaning of corpus delicti becomes necessary at this point, because some people usually think of a murder victim when anyone uses this term. A commonly accepted definition of corpus delicti is "the body or substance of a crime." As the term is used and understood today, this definition is not accurate. The definition has a broader meaning. Corpus delicti is applicable to the substantial and fundamental fact or facts connected with the actual commission of an illegal act (civil or criminal). For example, in the theft of a watch, the corpus delicti is the taking of the watch.

Usually the corpus delicti is proven by the prosecution at the start of a case, because without it, there is no offense. In certain instances, courts permit changes in the normal sequence in which evidence is introduced. Notwithstanding such a change in

procedure, the prosecution must always prove that the accused is the same person named in the indictment, charges and specifications. Usually the requisite proof is afforded by the testimony of people who know the accused. Next, the prosecution must prove, with the testimony of the witnesses, that the accused committed the crime.

INTENT

In some crimes, intent must be proven as a separate fact apart from the crime. Such crimes are murder, larceny, burglary, desertion, mutiny, and the like. In certain other crimes, the law holds that the crime itself shows intent existed. In this group are rape, sleeping on watch, drunkenness, neglect of duty, and so on.

DRUNKENNESS

Drunkenness may be admitted for consideration if it tends to show a mental or physical incapacity on the part of a person to plan or carry out a specific intent to commit an offense. The nature of some crimes is such that deliberate intent and careful planning may be beyond the ability of a person who is drunk. Such crimes are larceny, robbery, and burglary. For instance, a drunk person charged with robbery might have the charge reduced to one less serious, such as battery or trespassing. Similarly, in a murder case, proof of drunkenness might reduce the crime to manslaughter. Proof of drunkenness at the time the crime was committed may be introduced not to excuse or lessen the seriousness of the homicide, but to aid the court in deciding whether the accused is guilty of the crime charged or of one less serious in nature.

On the other hand, a statute may be so framed as to make the act of rape, assault and battery, or arson criminal, whether or not there was intent to break the law. Evidence that the accused was drunk would not, therefore, constitute a defense for the commission of any of these acts.

NEGLIGENCE

If a man kills another, proof of negligence may be sufficient to support a conviction without regard to intent. To avoid criminal responsibility, such a person must have used the same care and caution that a man of ordinary foresight would have used under similar conditions. The courts are very strict in interpreting what constitutes ordinary caution, particularly in regard to firearms.

PRESUMPTION OF INNOCENCE

The law presumes the accused is innocent until he or she is proven guilty. In a civil action, the plaintiff must prove his or her case by a preponderance of the evidence; whereas in a criminal case, his or her guilt must be proven beyond a reasonable doubt. The burden of proving a case (recovery or a ground of defense) is upon the person who makes the accusation and takes action to introduce the matter for trial before a judicial tribunal. The burden of proof remains to the end of the case with the party who has it at the beginning of the trial. The accused is never required to assume the burden of proof to show innocence. In minor issues, however, such as when the accused objects to the testimony introduced by the prosecution, the accused must assume the burden of proving that his or her objection is valid.

FORMS OF EVIDENCE

LEARNING OBJECTIVES: List and explain the three basic forms of evidence. Define demonstrative evidence.

Evidence can be divided into at least three basic forms: oral, documentary, and real. A special form of evidence called demonstrative will also be discussed in this section.

ORAL EVIDENCE

Oral evidence is the sworn testimony received at trial. The fact that an oath is administered is some guarantee that the information related by the witness will be trustworthy. If the witness makes statements under oath that are not true, he or she may be prosecuted for perjury. There are, however, other forms of oral evidence. For example, if a witness makes a gesture or assumes a position to convey information, this, too, is a form of oral evidence from the standpoint of a broad definition of the term. Generally, witnesses will be able to relate what they actually observed, heard, smelled, felt, or experienced, either through oral testimony or by acting out what they know as a result of their sensory perceptions.