Section 400.600 General

Section 400.600  General

a)         Introduction

1)         This

Subpart F is applicable only to courts-martial.  It is not applicable to

nonjudicial punishment, administrative boards, promotion boards, medical

retention boards, retention boards, or investigations and/or actions pertaining

to nonpunitive or administrative punishment.

2)         This

Subpart is also maintained in a publication titled Illinois Military Rules of

Evidence that is organized to coincide with the federal Military Rules of

Evidence (MCM Part III). In this Subpart, the parenthetical cross-reference at

the end of a body of text labeled Il. Mil. R. Evid. reflects the numbering

system applied to these policies in that publication.

b)         Scope

of Rules

1)         This Subpart applies to

general and special court-martial proceedings.

2)         In

the absence of guidance in this Manual, courts-martial will apply Illinois State

Rules of Evidence except as provided in subsection (b)(3).  The reviewing

courts may look to general military case law in applying these rules of

evidence, with particular emphasis on military offenses.

3)         Cases

Arising in a State Other Than Illinois.  In any court-martial arising out of

conduct in a state other than Illinois, evidence derived from an investigation

conducted in that State is not inadmissible under this Subpart, provided that

the evidence was lawfully obtained and would be admissible under the laws of

that state. (Il. Mil. R. Evid. 101)

c)         Purpose.

This Subpart shall be construed to secure fairness in administration,

elimination of unjustifiable expense and delay, and promotion of growth and

development of the law of evidence to the end that the truth may be ascertained

and proceedings justly determined. (Il. Mil. R. Evid. 102)

d)         Rulings

on the Evidence

1)         Effect

of Erroneous Ruling

. R. Evid. 101)

c)         Purpose.

This Subpart shall be construed to secure fairness in administration,

elimination of unjustifiable expense and delay, and promotion of growth and

development of the law of evidence to the end that the truth may be ascertained

and proceedings justly determined. (Il. Mil. R. Evid. 102)

d)         Rulings

on the Evidence

1)         Effect

of Erroneous Ruling.  Error may not be predicated upon a ruling that admits or

excludes evidence unless the ruling materially prejudices a substantial right

of a party and:

A)        Objection.

In case the ruling is one admitting evidence, a timely objection or motion to

strike appears of record, stating the specific ground of objection, if the

specific ground was not apparent from the context; or

B)        Offer

of Proof.  In case the ruling is one excluding evidence, the substance of the

evidence was made known to the military judge by offer or was apparent from the

context within which questions were asked.  Once the military judge makes a

definitive ruling on the record admitting or excluding evidence, either at or

before trial, a party need not renew an objection or offer of proof to preserve

a claim of error for appeal.  The standard provided in this subsection

(d)(1)(B) does not apply to errors involving requirements imposed by the

Constitution of the United States or the Constitution of the State of Illinois

as applied to members of the armed forces unless the error arises under this

Subpart and this subsection (d)(1)(B) provides a standard that is more

advantageous to the accused than the constitutional standard.

2)         Record

of Offer and Ruling.  The military judge may add any other or further statement

that shows the character of the evidence, the form in which it was offered, the

objection made, and the ruling.  The military judge may direct the making of an

offer in question and answer form.

3)         Hearing

of Members

t is more

advantageous to the accused than the constitutional standard.

2)         Record

of Offer and Ruling.  The military judge may add any other or further statement

that shows the character of the evidence, the form in which it was offered, the

objection made, and the ruling.  The military judge may direct the making of an

offer in question and answer form.

3)         Hearing

of Members.  In a court-martial composed of a military judge and members,

proceedings shall be conducted, to the extent practicable, so as to prevent

inadmissible evidence from being suggested to the members by any means, such as

making statements or offers of proof or asking questions in the hearing of the

members.

4)         Plain

Error.  Nothing in this subsection (d) precludes taking notice of plain errors

that materially prejudice substantial rights that were not brought to the

attention of the military judge. (Il. Mil. R. Evid. 104)

e)         Preliminary

Questions

1)         Questions

of Admissibility Generally.  Preliminary questions concerning the qualification

of a person to be a witness, the existence of a privilege, the admissibility of

evidence, an application for a continuance, or the availability of a witness

shall be determined by the military judge.  In making these determinations, the

military judge is not bound by the rules of evidence, except those with respect

to privileges.

2)         Relevancy

Conditioned on Fact.  When the relevancy of evidence depends upon the

fulfillment of a condition of fact, the military judge shall admit it upon, or

subject to, the introduction of evidence sufficient to support a finding of the

fulfillment of the condition.  A ruling on the sufficiency of evidence to

support a finding of fulfillment of a condition of fact is the sole

responsibility of the military judge, except when this Manual provides

expressly to the contrary.

3)         Hearing

of Members

, the military judge shall admit it upon, or

subject to, the introduction of evidence sufficient to support a finding of the

fulfillment of the condition.  A ruling on the sufficiency of evidence to

support a finding of fulfillment of a condition of fact is the sole

responsibility of the military judge, except when this Manual provides

expressly to the contrary.

3)         Hearing

of Members.  Except in cases tried before a special court-martial without a

military judge, hearings on the admissibility of statements of an accused under

Sections 400.610 through 400.630 shall, in all cases, be conducted out of the

hearing of the members.  Hearings on other preliminary matters shall be so

conducted when the interests of justice require or, when an accused is a

witness, if the accused so requests.

4)         Testimony

by Accused.  The accused does not, by testifying upon a preliminary matter,

become subject to cross-examination with regard to other issues in the case.

5)         Weight

and Credibility.  This subsection (e) does not limit the right of a party to

introduce before the members evidence relevant to weight or credibility.  (Il.

Mil. R. Evid. 104)

f)         Limited

Admissibility

When evidence that is admissible

as to one party or for one purpose but not admissible as to another party or

for another purpose is admitted, the military judge, upon request, shall

restrict the evidence to its proper scope and instruct the members accordingly.

(Il. Mil. R. Evid 105)

g)         Remainder

of, or Related, Writings or Recorded Statements

When a writing or recorded

statement or part thereof is introduced by a party, an adverse party may

require that party at that time to introduce any other part or any other

writing or recorded statement that, in fairness, should be considered

contemporaneously with it. (Il. Mil. R. Evid. 106)