Bridge the Gap – 2 Nov 2000

SUBJECT:  Rebuttal Evidence

1.  Sometimes, I have seen counsel try to introduce new matters/issues during rebuttal or surrebuttal.  What is proper rebuttal?  The answer lies in this statement:  "It is well settled that the function of rebuttal evidence is to explain, repel, counteract or disprove the evidence introduced by the opposing party."  [See United States v. Banks, 36 MJ 150. 166 (CMA 1992) for a string citation of cases so holding.]  Also, remember that the rules of evidence still remain in effect for rebuttal and surrebuttal evidence (unless it occurs during sentencing and the rules of evidence have been relaxed pursuant to RCM 1001(c)(3)).

2.  Counsel should be prepared to state how the evidence they are seeking to admit in rebuttal or surrebuttal helps to "explain, repel, counteract or disprove" the opposing party's evidence.  If counsel cannot specify how the evidence does so, the evidence most likely is not proper rebuttal or surrebuttal evidence.  

3.  The "safe approach" for trial counsel is to ensure that the evidence comes out in the case-in-chief; otherwise, the defense case may not give rise to admitting the evidence as proper rebuttal evidence.  On the other hand, it may be more dramatic and effective if some evidence is saved for rebuttal (as long as counsel recognize the risks involved).  As an exception to the "safe approach," trial counsel should consider delaying introduction of admissible uncharged misconduct evidence (MRE 404(b)) until rebuttal -- this will help focus attention on the charged offenses during the case-in-chief and will most likely better "protect the record" on appeal.

4.  In a trial by members, counsel should discuss rebuttal and surrebuttal evidence between themselves during a recess prior to the presentation of the evidence so that if the opposing side has any objections to the evidence, they can be raised at an Article 39a session.  If raised, then the judge will make the determination whether the evidence rebuts the prior evidence, and if so, whether it is admissible.