2018 (October Term)
United States v. Frost, 79 M.J. 104 (hearsay is generally not admissible in courts-martial; however, a prior consistent statement is not hearsay; hearsay; from the plain language of MRE 801(d)(1)(B), three criteria have been derived for the admission of prior consistent statements: (1) the declarant of the statement must testify and must be subject to cross-examination about the prior statement; (2) the statement must be consistent with the declarant’s testimony; and (3) the statement must be offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying; in addition, there are two additional guiding principles governing the admission of a prior consistent statement: (1) the prior statement, admitted as substantive evidence, must precede any motive to fabricate or improper influence that it is offered to rebut; and (2) where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut).
(in this case, the military judge made a clearly erroneous finding of fact when he admitted the initial statement of the alleged victim as a prior consistent statement after he determined that the defense had alleged that the victim’s psychotherapist had exerted an improper influence on the victim during counseling sessions and that this initial statement was made prior to the improper influence; in fact, based on the defense counsel’s opening statement, her cross-examination of the victim’s mother and the victim’s psychotherapist, and her colloquy with the military judge, the defense’s sole theory and line of approach was that the victim’s mother, not the psychotherapist, had a motive to improperly influence the victim by her desire to obtain sole custody of her children (to include the victim), and that she exerted an improper influence on the victim prior to the victim’s initial statement; statements made after an improper influence arose do not rehabilitate a witness’s credibility; because the military judge’s finding was unsupported by the record and outside the range of choices reasonably arising from the law and the applicable facts, the military judge abused his discretion in admitting the victim’s initial statement as a prior consistent statement when the initial statement was made after the mother’s improper influence).
2007
(in this case, the military
judge erred when he determined that a failure to remember facts
contained in a prior statement cannot be inconsistent with in-court
testimony that differs from those facts; an inconsistency for purposes
of MRE 613 may be found not only in diametrically opposed answers, but
also in inability to recall, or equivocation; a military judge has
considerable discretion to determine if the trial testimony is
inconsistent with a prior statement; but here the military judge
appears not to have understood that an inability to recall or a
non-responsive answer may present an inconsistency for purposes of MRE
613; consequently, his evidentiary ruling, based on an incorrect
understanding of the law, was an abuse of discretion).
(the military judge did not
abuse his discretion in rejecting a defense attempt, under the guise of
impeachment by inconsistent testimony, to bring in new evidence that
related to a point that the witness had not testified to at trial; the
witness was not asked about this point during his testimony, there was
no inconsistency, and the defense had not established a foundation for
later impeachment).
2005
United
States v. Meghdadi, 60 M.J. 438 (M.R.E. 608(c) [Evidence of bias]
permits
introduction of evidence, extrinsic or otherwise, tending to establish
bias,
prejudice, or motive to misrepresent on the part of a witness; M.R.E.
613(b)
[Extrinsic evidence of prior inconsistent statement of witness] permits
the
extrinsic evidence of prior inconsistent statements if the witness
denies
making them, or equivocates).
2001
United
States v. Palmer, 55 MJ 205 (although the usual
practice
is to confront the witness with an inconsistent statement during
cross-examination, it is permissible to delay any mention of the
inconsistent
statement until other witnesses are called).
(military judge did not abuse his discretion by sustaining objection
to
alleged inconsistent statement where defense counsel’s proffer was
vague,
misdirected under the rules of evidence, not linked to the credibility
of a
prior witness, and did not allude to the inconsistency between the
pretrial
statement and trial testimony as the basis for admission).
2000