Trial Practice Note: Read The Rules

My Liege CAAFLog references a recent government appeal in the case of United States v. Dossey. This case is interesting because of it's treatment of government appeals after the military judge sua sponte declares a mistrial.

The lessons of Dossey for counsel are several. The military judge excluded evidence from a search of the accused's computer. During trial the military judge realized that the prosecution had introduced by means of a document -- to the members -- evidence he had excluded.

1. Why did the defense counsel not object to the document before it got to the members? The defense had done a good job in motions practice of excluding evidence. But you have to be alert to the intended or unintended effort of the trial counsel to offer excluded evidence.

2. Why did the military judge not sua sponte object to the document when first shown it and before it got to the members?

3. Trial counsel who intend seeking a government appeal should read the Manual for Courts-Martial and Article 62, UCMJ.

a. Article 62(a)(2), states in important part:

An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding.

b. R.C.M. 908(b) sets out nicely the rules and framework for the government to follow in situations where the trial counsel believes a government appeal is appropriate. It seems apparent from Dossey, that the trial counsel was unaware of R.C.M. 908(b).