CORE CRIMINAL LAW SUBJECTS: Evidence: Hearsay

Generally:

2022 (October Term)

United States v. Smith, 83 M.J. 350 (as a general rule, hearsay, defined as an out of court statement offered into evidence to prove the truth of the matter asserted, is not admissible in courts-martial).

United States v. Pyron, 83 M.J. 59 (an accused’s testimony at a former trial is not hearsay if the statement is offered against an opposing party and was made by the party in an individual capacity).

2020 (October Term)

United States v. Becker, 81 M.J. 483 (the Sixth Amendment’s Confrontation Clause holds that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this bedrock procedural guarantee applies to both federal and state prosecutions and is a concept that dates back to Roman times; where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination; one exception to the cross-examination requirement, derived from common law, is the doctrine of forfeiture by wrongdoing, which provides that where an accused’s wrongful actions prevent a witness from testifying, and where those actions were designed to prevent the witness from testifying, admission of out-of-court statements by that witness does not offend the Confrontation Clause). 

United States v. Henry, 81 M.J. 91 (MRE 803(2) (excited utterance exception), in contrast to MRE 803(1) (present sense impression exception), does not contain a corroboration requirement). 

United States v. Ayala, 81 M.J. 25 (as a general rule, hearsay, defined as an out of court statement offered into evidence to prove the truth of the matter asserted, is not admissible in courts-martial).

United States v. Norwood, 81 M.J. 12 (hearsay statements (out of court statements offered into evidence to prove the truth of the matter asserted) usually are inadmissible in courts‑martial). 

2019 (October Term)

United States v. Finch, 79 M.J. 389 (hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted; hearsay generally is not admissible in courts-martial). 

(a military judge mishandled issues surrounding the admissibility of a child witness’s videotaped interview under a hearsay objection, (1)  where he did not put any findings of fact or particularized conclusions of law on the record and thus his decision merited little deference, and (2) where he did not include in the record any analysis of why he concluded the videotape was admissible as non-hearsay under MRE 801 (the hearsay rule), nor did he specify under which subsection of MRE 801 he believed the videotape to be admissible, instead simply stating that it was admissible under the rule).  

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).

2017 (October Term)

United States v. Jones, 78 M.J. 37 (the military judge erred in admitting the statement of appellant’s co-conspirator made to a CID agent who was investigating a possible conspiracy after it had concluded because the statement was not made during and in furtherance of the conspiracy; there can be no furtherance of a conspiracy that has ended; the statement therefore was not properly admitted under MRE 801(d)(2)(E), an exclusion to the hearsay rule when a statement is made by an accused’s co-conspirator during and in furtherance of the conspiracy; the statement was hearsay, and should have been excluded under the rule against hearsay in MRE 802).

2012 (September Term)

United States v. Porter, 72 M.J. 335 (two pages of a drug testing report, summarizing the test results with signatures of the analyst and reviewer, were testimonial and admitted in violation of the confrontation clause, where the purpose of the signature blocks on the confirmation summary pages was to certify that the lab’s testing controls and standards were met for the accused’s tests, the pages were prepared by analysts with certain knowledge that the testing was part of a criminal investigation, and there is no question that the statements were made under circumstances which would lead an objective witness reasonably to believe that they would be available for use at a later trial; additionally, the confirmation summary pages (1) were generated by an external request from law enforcement for the purpose of criminal investigation; and (2) summarized additional substantive information - namely, that the accused’s samples were positive for illegal drugs and that the lab’s testing controls and standards were met for his tests; these facts suggest that the pages were created for the purpose of establishing or proving past events potentially relevant to later criminal prosecution, and would reasonably be expected to be used prosecutorially, rather than having been made for an administrative purpose). 

(the military judge’s admission in violation of the confrontation clause of two testimonial pages of a drug testing report, summarizing the test results with signatures of the analyst and reviewer, was not harmless beyond a reasonable doubt, where with regard to the quantitative results of the drug tests, the expert witness exclusively referenced the testimonial statements in the summary pages without delving into the underlying machine-generated data, and he highlighted the signature blocks on the summary pages to establish that the lab’s testing standards and controls were followed during the testing of the accused’s samples; at no time did the expert witness specifically interpret or rely on the machine-generated portions of the drug testing report to independently conclude that the accused’s samples had tested positive for illegal drugs; in light of these facts, the government failed to carry its burden to demonstrate that there was no reasonable possibility that the testimonial statements contributed to the accused’s convictions). 

United States v. Squire, 72 M.J. 285 (the Confrontation Clause bars admission of the testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination). 

(a comprehensive definition of testimonial statements under the Confrontation Clause has not been articulated, but the analysis is fact specific, meaning that it is contextual, rather than subject to mathematical application of bright line thresholds; the goal is an objective look at the totality of the circumstances surrounding the statement; factors used in determining whether a given statement is testimonial include whether: (1) the statement was elicited by or made in response to law enforcement or prosecutorial inquiry, (2) the statement involved more than a routine and objective cataloging of unambiguous factual matters, and (3) the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial). 

United States v. Lubich, 72 M.J. 170 (authentication under MRE 901 and admissibility as a hearsay exception are distinct inquiries). 

United States v. Sweeney, 70 M.J. 296 (testimonial hearsay may not come into evidence without cross-examination of the declarant unless (1) the declarant is unavailable, and (2) the declarant was subject to prior cross-examination on the hearsay). 

(although reasonable minds may disagree about what constitutes testimonial hearsay, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; thus, a document created solely for an evidentiary purpose made in aid of a police investigation, ranks as testimonial). 

(testimonial statements include a formalized certification of results contained in a drug testing report requested by the prosecutor; however, it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial). 

(it is emphatically not the case that a statement is automatically nontestimonial by virtue of it being a routine statement of unambiguous factual matters; indeed, most witnesses testify to their observations of factual conditions or events, but this does not render such observations nontestimonial; that a statement is routine is relevant only to whether that statement is made in the ordinary course of business, which of course does not determine whether the statement is testimonial; moreover, that factual matters may be unambiguous means only that a declarant need be competent to perceive them; it does not mean the declarant was honest in reporting them - an equal concern of the Confrontation Clause). 

(in determining whether statements in a drug testing report are testimonial under the Confrontation Clause, the focus has to be on the purpose of the statements in the report itself, rather than the initial purpose for the urine being collected and sent to the laboratory for testing; the relevant question is thus whether the statement is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary). 

(although those performing initial drug tests may well be independent scientists carrying out non-adversarial public duties, that does not mean that their statements are not produced to serve as evidence; where an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information; this is all the more evident where the government expert testifies that the forensic laboratory’s mission is to provide urinalysis drug testing that is scientifically valid and forensically acceptable as evidence in courts of law). 

(the formality of a document generated by a forensic laboratory is a factor to be considered when determining whether a document is testimonial).

(the admission of a cover memorandum results certification of a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the memorandum was testimonial where the laboratory made it after appellant had been charged, addressed it to the legal service office, and included the formulaic language for authenticating a business record - language one would expect to find only on a document made for an evidentiary purpose). 

(the admission of a specimen custody document certification from a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the certification was testimonial where it was a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated that the laboratory results were correctly determined by proper laboratory procedures, and that they were correctly annotated; such a formal certification has no purpose but to function as an affidavit; because the declarant of the certification was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause). 

(the admission of the chain of custody documents, data review sheets, and results report summary from a drug testing report for appellant’s urinalysis (along with their stamps, signatures, and other notations) did not constitute plain error; these documents were not plainly and obviously testimonial where they were neither formalized, affidavit-like statements, nor statements made in a formal setting). 

United States v. Cavitt, 69 M.J. 413 (the Confrontation Clause is not satisfied by reliability - it requires confrontation of the declarant of testimonial hearsay).

United States v. Blazier, 69 M.J. 218 (the signed, certified cover memoranda on a drug testing report - prepared at the request of the government for use at trial, and which summarized the entirety of the laboratory analyses in the manner that most directly bore witness against appellant - are testimonial under current Supreme Court precedent).
   

(the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; accordingly, no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination).

(where testimonial hearsay is admitted, the Confrontation Clause is satisfied only if the declarant of that hearsay is either (1) subject to cross-examination at trial, or (2) unavailable and subject to previous cross-examination).

(an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay machine-generated printouts of machine-generated data, and/or (2) rely on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an expert opinion, so long as the expert opinion arrived at is the expert’s own; however, the Confrontation Clause may not be circumvented by an expert’s repetition of otherwise inadmissible testimonial hearsay of another). 

(it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular). 

(neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay). 

(although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witness’s conclusions). 

United States v. Blazier, 68 M.J. 439 (the Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this gives accuseds the right to question not only witnesses providing oral, in-court testimony, but also the declarant of any hearsay that is testimonial; before such testimonial hearsay may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness and that the witness be unavailable). 

(a non-exclusive list of examples of what constitutes testimonial hearsay includes: (1) ex parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial). 

(the top portions of drug testing report cover memoranda - which summarized and clearly set forth the “accusation” that certain substances were confirmed present in appellant’s urine at concentrations above the DOD cutoff level ‑ are clearly testimonial for Confrontation Clause purposes; the evidentiary purpose of those memoranda was apparent, as they not only summarized and digested voluminous data but were generated in direct response to a request from a command indicating they were needed for use at a court-martial).

United States v. Bush, 68 M.J. 96 (post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant). 

United States v. Clayton, 67 M.J. 283 (although the Supreme Court has not defined testimonial hearsay precisely, it has said that the distinction between testimonial and nontestimonial hearsay aims to guard against abuses at which the Confrontation Clause was directed, like use of ex parte examinations as evidence against the accused; the Supreme Court has identified statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial as an example of core testimonial hearsay; the CAAF has established a number of questions relevant in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial:  first, was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry; second, did the statement involve more than a routine and objective cataloging of unambiguous factual matters; and third, was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial). 

(a German civilian police report describing the circumstances leading to appellant’s arrest for suspected drug possession, and the report’s English translation, constituted testimonial hearsay, where the report was prepared in the course of a drug investigation, involved more than a routine and objective cataloging of unambiguous factual matters, and was created with an eye toward trial). 

2008 (Transition)

United States v. Cucuzzella, 66 M.J. 57 (hearsay is not admissible except as provided by the rules of evidence or an act of Congress). 

United States v. Harcrow, 66 M.J. 154 (Crawford v. Washington changed the analytical framework set out in Ohio v. Roberts for determining the admissibility of testimonial hearsay statements; Crawford transformed the inquiry from one that was grounded in the indicia of reliability to one hinging on whether the out-of-court statement comes within the scope of the Sixth Amendment because it bears testimony against an accused; the lynchpin of the Crawford decision is its distinction between testimonial and nontestimonial hearsay; in Whorton v. Bockting, the Supreme Court held that Crawford announced a new rule of criminal procedure, which is retroactive on direct appeal). 

 
(the Confrontation Clause of the Sixth Amendment states that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; under Crawford v. Washington, the Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination; Crawford set forth various formulations of the core class of testimonial statements without articulating a comprehensive definition of “testimonial;” these include: (1) ex parte in-court testimony; (2) extrajudicial statements contained in formalized trial materials; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; these formulations, however, do not constitute an exhaustive list of testimonial statements, and serve as a useful baseline to begin analysis of the testimonial quality of other statements in question). 

 
(several nonexclusive factors have been identified that can be considered when distinguishing between testimonial and nontestimonial hearsay statements; these factors include: (1) whether the statement was elicited by or made in response to law enforcement or prosecutorial inquiry; (2) whether the statement involved more than a routine and objective cataloging of unambiguous factual matters; and (3) whether the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial; the goal is an objective look at the totality of the circumstances surrounding the statement to determine if the statement was made or elicited to preserve past facts for a criminal trial). 

 (in this case, state forensic laboratory reports documenting the presence of cocaine and heroin on drug paraphernalia seized from the accused’s residence constituted testimonial statements which were subject to exclusion under the Confrontation Clause of the Sixth Amendment as inadmissible hearsay, where the laboratory analysis was conducted at the behest of the sheriff’s office after arresting the accused for suspected drug use, the laboratory reports pertained to items seized from the accused’s home at the time of the arrest, and the reports expressly identified the accused as a “suspect”).    

(lab results or other types of routine records may become testimonial where an accused is already under investigation, and where the testing is initiated by the prosecution to discover incriminating evidence). 

2007

United States v. Cabrera-Frattini, 65 M.J. 241 (before testimonial statements may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness, and that the witness be unavailable). 

United States v. Foerster, 65 M.J. 120 (the Confrontation Clause of the Sixth Amendment should not be read as a wholesale nullification of the hearsay exceptions outlined in the Military Rules of Evidence). 

(for the purposes of the Confrontation Clause of the Sixth Amendment, relevant factors in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial include:  (1) whether the statement was elicited by or made in response to law enforcement or prosecutorial inquiry; (2) whether the statement involved more than a routine and objective cataloging of unambiguous factual matters; and, (3) whether the primary purpose for making, or eliciting, the statements was the production of evidence with an eye toward trial; the final factor, whether the primary purpose was prosecutorial in nature, necessitates a contextual analysis).

(an affidavit filled out by a victim of check fraud pursuant to internal bank procedures and without law enforcement involvement in the creation of the document was admissible as a non-testimonial business record that did not implicate the Sixth Amendment’s right of confrontation in light of Crawford v. Washington, 541 US 36 (2004) and Davis v. Washington, 126 SCt 2266 (2006), where the affidavit was made at the behest of bank and not law enforcement officials, the affidavit cataloged objective facts, and the primary purpose of the bank in eliciting the affidavit was to ensure that it would not be defrauded by an account holder; although the affidavit did contain language allowing the document to be turned over to law enforcement, that did not change the primary purpose for either eliciting or making the statement; nor is there authority to suggest that that fact, without more, transforms a nontestimonial business record into a testimonial statement; this affidavit was akin to other formal documents that courts have concluded are nontestimonial, such as military personnel records, urinalysis lab reports, and deportation warrants; the absence of evidence that a document was generated for the purpose of producing evidence at trial is important in determining whether it is nontestimonial).

(every document labeled “affidavit” is not, for that reason alone, a testimonial statement that implicates the Confrontation Clause of the Sixth Amendment; rather, affidavits that would be presumptively testimonial refer to ex parte affidavits developed:  (1) by law enforcement or government officials, and (2) by private individuals acting in concert with or at the behest of law enforcement or government officials; other affidavits remain subject to a contextual analysis to determine whether they are, or are not, testimonial).  

United States v. Gardinier, 65 M.J. 60 (the Confrontation Clause of the Constitution bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the accused had a prior opportunity for cross-examination). 

(without articulating a comprehensive definition of testimonial in Crawford v. Washington, 541 US 36 (2004), the Supreme Court set forth various formulations of the core class of testimonial statements; these formulations should not be viewed as an exhaustive list of testimonial statements; nevertheless, one of these formulations is statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial).

(several factors that can be considered when distinguishing between testimonial and nontestimonial hearsay for Confrontation Clause purposes include:  (1) was the statement elicited by or made in response to law enforcement or prosecutorial inquiry?; (2) did the statement involve more than a routine and objective cataloging of unambiguous factual matters?; and (3) was the primary purpose for making, or eliciting, the statement the production of evidence with an eye toward trial?; under this factors approach, the goal is an objective look at the totality of the circumstances surrounding the statement to determine if the statement was made or elicited to preserve past facts for a criminal trial). 

(statements made by an alleged child victim to a sexual assault nurse examiner were testimonial hearsay, and their admission into evidence was error, where the nurse examiner, who specialized in conducting forensic medical examinations, performed her forensic medical examination on the alleged victim at the behest of law enforcement, with the forensic needs of law enforcement and prosecution in mind; on balance the evidence tips towards a conclusion that the statements were elicited in response to a law enforcement inquiry with the primary purpose of producing evidence with an eye toward trial). 

United States v. Rankin, 64 M.J. 348 (the Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination). 

(statements are not testimonial hearsay when the primary purpose for making the statements is something other than producing evidence with an eye toward trial or prosecution). 

(relevant questions in distinguishing between testimonial and nontestimonial hearsay for the purposes of the Confrontation Clause include: (1) was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry; (2) did the statement involve more than a routine and objective cataloging of unambiguous factual matters; and (3) was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial). 

(a letter from the personnel officer of accused’s unit to the accused’s mother notifying her that her son had been an unauthorized absentee since a particular date, and imploring her to urge her son to surrender to military authorities immediately, was not a testimonial statement for the purposes of the Confrontation Clause, where the primary purpose of the letter was not the production of evidence for a court-martial). 

(a computer generated document, referred to as a “page 6” from the accused’s service record book, that is generated from the muster report of the accused’s original command to indicate the beginning date of the accused’s unauthorized absence, was not a testimonial statement for the purposes of the Confrontation Clause, where the primary purpose of the document was not to produce incriminating evidence for the accused’s prosecution; the document reflects the commander’s significant interest in accounting for the whereabouts of the members of his command and knowing when a member is unaccounted for). 

(a naval message from the Navy Absentee Collection Information Center informing personnel, financial, and supply entities that the accused, who had been absent, had been apprehended by civilian authorities and returned to military control, was not a testimonial statement for the purposes of the Confrontation Clause, where the message appears on its face to have been prepared and disseminated to the addressees for the purpose of initiating the process of the accused’s transition to military control). 

(the form DD-553 entitled “DESERTER/ABSENTEE WANTED BY THE ARMED FORCES,” a form originating with the accused’s command for distribution to civilian law enforcement authorities and containing a physical description of the accused and a statement that the accused had remained absent for at least thirty days from his unit, was arguably testimonial; because the form gives a civilian peace officer the authority to apprehend a military member specifically for the offense of desertion, it is reasonable to conclude that the preparation of such a document has a significant prosecutorial purpose; certainly, the primary purpose of such a document is to facilitate the arrest of a suspect and thus it is generated with an eye toward prosecution; on the other hand, the form is not necessarily generated for the purpose of producing evidence for trial, so much as it is intended to produce the suspect for trial). 

(for nontestimonial statements, the Ohio v. Roberts requirement for particularized guarantees of trustworthiness governs the confrontation analysis; under the Roberts framework, nontestimonial hearsay is admissible if:  1) the statement falls within a firmly rooted hearsay exception, or 2) it bears other particularized guarantees of trustworthiness). 

2006

United States v. Magyari, 63 M.J. 123 (under the Supreme Court’s ruling in Crawford v. Washington, in order for the prosecution to introduce testimonial out-of-court statements into evidence against an accused, the Confrontation Clause requires that the witness who made the statement be unavailable, and that the accused have had a prior opportunity to cross-examine the witness).

(the admissibility of out-of-court statements under Crawford v. Washington hinges on whether the out-of-court statement comes within the scope of the Sixth Amendment because it bears testimony against an accused; the lynchpin of the Crawford decision is its distinction between testimonial and nontestimonial hearsay; where nontestimonial statements are at issue, the statements do not fall within Crawford’s scope and may be exempted from Confrontation Clause scrutiny altogether; however, the Crawford Court did not spell out a comprehensive definition of testimonial, leaving to lower courts the responsibility to determine which statements qualify as testimonial and fall within its scope; nevertheless, the Court identified three forms of core testimonial evidence; they include: (1) ex parte in-court testimony; (2) extrajudicial statements in formalized trial materials; and (3) statements made under circumstances that would cause a reasonable witness to believe they could be used at trial; further, the Court identified examples of testimonial hearsay, including prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and police interrogations).

(the application of Crawford v. Washington on the admission of testimonial out-of-court statements into evidence not only depends on the meaning of testimonial, but on the circumstances and context in which out-of-court statements are generated, and whether the out-of-court statements were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial by the government). 

(in the context of random urinalysis screening, where the lab technicians do not equate specific samples with particular individuals or outcomes, and the sample is not tested in furtherance of a particular law enforcement investigation, the data entries of the technicians are not testimonial in nature; nonetheless, the lab results and reports must satisfy the standard for reliability established in Ohio v. Roberts).

(the data entries in appellant’s urinalysis lab report made by the Navy Drug Screening Laboratory technicians did not constitute testimonial statements within the scope of the Sixth Amendment’s Confrontation Clause; the lab technicians handling samples worked in a nonadversarial environment, where they conducted routine series of tests requiring virtually no discretionary judgments; the lab technicians handling appellant’s particular sample had no reason to suspect him of wrongdoing, and no reason to anticipate that his sample would test positive and be used at a trial; the lab technicians were not engaged in a law enforcement function, a search for evidence in anticipation of prosecution or trial; rather, their data entries were simply a routine, objective cataloging of an unambiguous factual matter; because the lab technicians were merely cataloging the results of routine tests, the technicians could not reasonably expect their data entries would bear testimony against appellant at his court-martial).

(lab results or other types of routine records may become testimonial and fall within the scope of the Sixth Amendment’s Confrontation Clause where an accused is already under investigation, and where the testing is initiated by the prosecution to discover incriminating evidence). 

(if the declarant is unavailable to be cross-examined, the Confrontation Clause permits the admission of a hearsay statement in a criminal trial only if: (1) the statement falls within a firmly rooted hearsay exception, or (2) it bears other particularized guarantees of trustworthiness).

(the accused’s urinalysis lab report satisfied the requirement of the Ohio v. Roberts test for admission of nontestimonial evidence that the evidence fell within a firmly rooted hearsay exception because the report was a record of regularly conducted activity of the Navy Drug Screening Laboratory that qualified as a business record under MRE 803(6)). 

2005

United States v. Taylor, 61 M.J. 157 (naval messages used to prove the dates of appellant’s absence and the elements of the offense were hearsay when offered into evidence to prove the truth of a matter asserted in their text). 
 
(although hearsay is generally inadmissible, MRE 803 and 804 contain a number of exceptions under which hearsay statements may be introduced).

United States v. Rhodes, 61 M.J. 445 (a witness who professes no memory of an event described in an earlier statement is available for confrontation purposes but unavailable for hearsay purposes; MRE 804 provides certain hearsay exceptions where the declarant is unavailable; that rule expressly defines unavailability to include situations where the declarant testifies to a lack of memory of the subject matter of the declarant’s statement.

United States v. Scheurer, 62 M.J. 100 (where the declarant is unavailable to be cross-examined, the Confrontation Clause permits the admission of a hearsay statement in a criminal trial only if:  (1) the statement falls within a firmly rooted hearsay exception, or (2) it bears other particularized guarantees of trustworthiness).

(accomplices’ confessions that inculpate a criminal accused are not within a firmly rooted exception to the hearsay rule as that concept has been defined in Confrontation Clause jurisprudence; rather, such statements are presumptively unreliable).

1999

United States v. Schlamer, 52 MJ 80 (a military judge had broad discretion to prevent a party from smuggling inadmissible hearsay into the case under the guise of testing the basis for expert testimony; thus, military judge did not abuse his discretion by preventing defense counsel from asking one expert what his opinion was of another, non-testifying expert’s opinion).

Adoptive Admissions:

2005

 
United States v. Datz, 61 M.J. 37 (under FRE 801(d)(2)(B) and MRE  801(d)(2)(B), a statement is excepted from the general hearsay rule when it is one that has been offered against a party who has manifested an adoption or belief in its truth; an adoptive admission can be accomplished through nonverbal means, such as a hand or head motion; the text of the rule does not explicitly incorporate body gestures, but neither does it preclude such admissions).  
 
(when a statement is offered as an adoptive admission, the proponent must present sufficient proof to support a finding that the party against whom the statement is offered heard, understood, and acquiesced in the statement). 
 
(the foundational requirements for admitting adoptive admissions are a showing that (1) the party against whom it is offered was present during the making of the statement; (2) he understood its content; and (3) his actions or words or both unequivocally acknowledged the statement in adopting it as his own). 
 
(in this case, the government did not meet its foundational burden of demonstrating that the accused understood and acquiesced in the alleged adoptive admissions before they were admitted into evidence, where there was an ambiguity as to the actual questions asked of the accused by the interrogator, and where the questions asked of the accused, even if they were recalled exactly as given, were ambiguous because they contained compound elements). 
 
(adoptive admissions in context can present uncertain and ambiguous applications of the law of evidence, which are not solely questions of fact for the fact-finder; in this case, the fourth adoptive admission was tantamount to a confession of rape, but without the indicia of reliability of a written confession signed by the accused; in light of this record, where the government presented the victim’s testimony and the alleged adoptive admissions and no other direct evidence of rape, we cannot say with fair assurance that the testimony regarding the accused’s adoptive admissions did not have substantial influence on the panel’s decision). 
 
(the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him; here the alleged adoptive admissions rested upon an interrogator’s interpretation of body language; without some additional written, verbal, or video confirmation, this amounted to a confession by gesture of a critical element of the offense -- and the only contested element of the offense; gestures and reactions vary from person to person under the pressure of interrogation; as a result, the military judge’s decision to admit the evidence of the accused’s head nodding without adequate foundation was prejudicial error).

Business entries:

2015 (September Term)

United States v. Bess, 75 M.J. 70 (daily muster reports qualified as business records under MRE 803(6) where they were made at or near the time from information transmitted by a person with knowledge, kept in the course of a regularly conducted business activity, and it was the regular practice of that business activity to make the reports, all as shown by the testimony of the custodian). 

(even if the basic requirements for the business record hearsay exception are satisfied (i.e., the records were made at or near the time from information transmitted by a person with knowledge, kept in the course of a regularly conducted business activity, and it was the regular practice of that business activity to make the report, all as shown by the testimony of the custodian), a document may still fail to qualify as a business record if the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness). 

(the opponent of the admission of records offered under the business record exception bears the burden of establishing sufficient indicia of untrustworthiness). 

(minor errors in a business record do not show that the business record is untrustworthy, but significant mistakes or internal contradictions may indicate a lack of trustworthiness; courts should not focus on questions regarding the accuracy of a record in making the trustworthiness determination because the factfinder is responsible for weighing and assessing credibility of the admitted evidence). 

(in this case, the daily muster reports offered under the business records exception were not so untrustworthy that their admission as business records constituted an abuse of discretion by the military judge where given the limited results of the cross-examination of the government witness and the defense witness testimony, nothing presented demonstrated a lack of trustworthiness; servicemembers represented as “present” on the muster reports had been physically verified by a line-level supervisor, and the rule requires only that the records be created based upon information transmitted by a person with knowledge; although the meaning of the designation for servicemembers listed on the reports as “late stay/special detail” could vary depending on the context, contemporaneous documentation need not be a model of statistical clarity to qualify as a business record). 

2012 (September Term)

United States v. Tearman, 72 M.J. 54 (under any of the various formulations of testimonial statements, neither the chain-of-custody documents nor the internal review worksheets at issue in the drug testing report were testimonial for purposes of the Confrontation Clause; the process of creating the challenged statements was initiated without any external request, before appellant was charged, and before all, or in the case of the chain-of-custody documents, any testing was complete; the entries and notations contained in the documents were made contemporaneously with a change in custody of the sample or a step in the testing process, pursuant to the regular practice of the drug screening lab and in the regular course of conducting its business; thus, when the laboratory technicians signed and annotated the internal chain-of-custody and internal review documents, they did so under circumstances which would lead an objective witness reasonably to believe that they did so to maintain internal control, not to create evidence for use at a later trial; in addition, none of the statements at issue summarize or certify additional substantive information; instead, the signatures and annotations in the chain-of-custody documents and internal review worksheets track the progress of the specimen bottle from the command to the drug screening lab and from person-to-person at the drug screening lab, and note the progress of the sample through the testing processes; finally, the documents at issue lack any indicia of formality or solemnity that, if present, would suggest an evidentiary purpose; instead, the statements are comprised of nothing more than signatures, stamped names, dates, and minimal notations with no certification, swearing, witnessing, or other attestation; based on all of the above, none of the statements contained in the chain-of-custody documents and the internal review worksheets at issue were testimonial and that the military judge did not abuse his discretion in admitting them as business records under MRE 803(6)).

(although not every business record is necessarily nontestimonial, the characteristics that distinguish documents prepared in the course of a regularly conducted business activity from those prepared in anticipation of litigation under MRE 803(6), are also indicative of an administrative purpose rather than an evidentiary purpose). 

2010 (September Term)

United States v. Blazier, 69 M.J. 218 (statements prepared in anticipation of litigation are not business records and, even if a document might otherwise be a business record, if it is testimonial hearsay, its admission violates the Confrontation Clause).

United States v. Clayton, 67 M.J. 283 (a German civilian police report describing the circumstances leading to appellant’s arrest for suspected drug possession would not qualify as either a business record or a public record). 

United States v. Foerster, 65 M.J. 120 (MRE 803(6) allows for the admission of business records that would otherwise be inadmissible hearsay as long as the holder of the record is a business and the record is made at or near the time by, or from information transmitted by, a person with knowledge, is kept in the course of a regularly conducted business, and it was the regular practice of that business to make such records; there is no unavailability requirement under this rule; the business records exception should be construed generously in favor of admissibility). 

(a document prepared by a third party is properly admitted as part of a second business entity’s records if the second business integrated the document into its records and relied upon it in the ordinary course of its business; there are three requirements when a business adopts a record prepared by another:  (1) the record must be procured by the second entity in the normal course of business; (2) the second entity must show that it relied on the record; and (3) there must be other circumstances indicating the trustworthiness of the document). 

(the military judge did not abuse her discretion in admitting a forgery affidavit filled out by a victim of check fraud as a business record under MRE 803(6), where the affidavit was procured in the ordinary course of business pursuant to the bank’s standard operating procedures, the bank relied on the affidavit and adopted it as its own in deciding whether to reimburse the victim, and the affidavit bore sufficient indicia of trustworthiness). 

United States v. Rankin, 64 M.J. 348 (the military judge did not abuse his discretion in admitting service record exhibits under the business records exception to the hearsay rule to document the accused’s unauthorized absence offense, where a witness provided the foundational testimony in support of admissibility and the business records exception is firmly rooted).

2002

United States v. Grant, 56 MJ 410 (courts have generally held that a document prepared by a third party is properly admitted as part of a second business entity’s records if the second business integrated the document into its records and relied upon it in the ordinary course of its business).

(a record incorporated by a second entity may be admitted under Mil.R.Evid. 803(6) on the testimony of a "qualified witness" of the incorporating entity alone if the following criteria are met: (1) the incorporating entity must obviously procure and keep the record in the normal course of its business; (2) the entity must show that it relies on the accuracy of the incorporated record in its business; and (3) there must be other circumstances indicating the trustworthiness of the document).

(a laboratory test result incorporated by a hospital into its own records was properly admitted under Mil.R.Evid. 803(6) where: (1) qualified witnesses provided sufficient foundation to show that the lab report had been incorporated by the hospital as its own business record; (2) the treating physician testified as to his familiarity with Air Force medical testing and stated that he and presumably other physicians rely on such results to be accurate in order to make the appropriate treatment in cases where the patient is unresponsive to pain stimuli; (3) the treating physician’s reliance on the report speaks directly to its trustworthiness; (4) presumably, those responsible for conducting the test and providing the results at the lab were aware that an incorrect result may lead to a patient’s failure to receive proper medical treatment, which could be potentially followed by serious medical consequences or even death; and (5) there was no evidence in the record that suggests the hospital had received false or erroneous results from Armstrong in the past).

2001

United States v. Harris, 55 MJ 433 (a writing will be admissible as a business entry provided:  (1) the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded, and (2) the record is kept in the course of regularly conducted business activity; this foundation may be laid through the testimony of the custodian of the records or other qualified witness, but the record will not be admissible if the source of information, or the method or circumstances of preparation indicate a lack of trustworthiness).

(a foundational witness need only be generally familiar with the process of making or transmitting a writing in order to be “qualified” under Mil.R.Evid. 803(6)).

(the testimony of a bank fraud examiner established him as qualified under Mil.R.Evid. 803(6) to lay the foundation to qualify a bank videotape logbook system as a business entry where:  (1) he was familiar with the videotape and logbook system; (2) he testified that logbook entries were made when a tape was changed; (3) he testified that entries were initialed when made and were made by people with personal knowledge; and (4) his testimony established that the logbook was routinely used and was kept in the course of business).

(the testimony of a bank teller established her as qualified under Mil.R.Evid. 803(6) to lay the foundation to qualify a bank videotape logbook system as a business entry where:  (1) she testified that she made entries in the logbook herself; (2) she discussed how entries were made when the tapes were changed and that this was regular procedure; and, (3) she identified the initials in the logbook from the day in question as those of another teller).

Excited utterances:

2022 (October Term)

United States v. Smith, 83 M.J. 350 (a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused, is admissible as an exception to the general prohibition on hearsay as an excited utterance; the implicit premise of the exception is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of a lack of opportunity to fabricate). 

(for hearsay to be admitted as an excited utterance: (1) the statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation; (2) the event that prompts the utterance must be startling; and (3) the declarant must be under the stress of excitement caused by the event; relevant to the third prong of this inquiry are the physical and mental condition of the declarant and the lapse of time between the startling event and the statement; the proponent of the excited utterance has the burden to show by a preponderance of the evidence that each element is met). 

(in this case, even though the military judge was entitled to little deference because his ruling was supported by only bare-boned findings of fact and analysis on the record, he did not abuse his discretion in admitting the victim’s Snapchat message to a friend, “I think he [appellant] raped me,”as an excited utterance where (1) the message was a spontaneous outburst shortly after looking in a mirror and seeing a hickey on her neck and bruises on her chest and arms, (2) her discovery of the hickey and bruising was startling, causing her to shake, feel nauseated, and sweat, and (3) at the time, she was under the stress caused by the event, as she was shaking, nauseated, and sweating). 

(the plain language of the hearsay exception provides for admission of a statement relating to a startling event or condition; there is no requirement that the excited utterance directly mention the startling event or condition, or that the startling event or condition must be the underlying offense). 

(the basis of the excited utterance exception rests with the spontaneity and impulsiveness of the statement; thus, the startling event does not have to be the actual crime itself, but rather may be a related occurrence that causes such a reaction). 

(a statement of belief or opinion can constitute an excited utterance as long as it is related to the startling event that prompted it).

2020 (October Term)

United States v. Henry, 81 M.J. 91 (hearsay declarants are witnesses and must have personal knowledge in order for their statements to be admissible; in the case of a hearsay declarant, the personal knowledge does not need to be conclusively established before the testimony is admitted; rather, it is enough, if the declarant so far as appears has had an opportunity to observe the fact declared; when it comes to personal knowledge, the military judge’s role is to determine whether there is sufficient evidence for a reasonable court member to find that declarant had personal knowledge of his declaration; this is not a high bar). 

(a statement relating to a startling event or condition, made while the declarant was under the stress of excitement caused by the event or condition, is admissible as an exception to the general prohibition on hearsay; the implicit premise of the exception is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of a lack of opportunity to fabricate). 

(for a statement to qualify as an excited utterance: (1) the statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation; (2) the event prompting the utterance must be startling; and (3) the declarant must be under the stress of excitement caused by the event; relevant to the third prong of the inquiry as to whether a statement qualifies as an excited utterance are the physical and mental condition of the declarant and the lapse of time between the startling event and the statement; however, it is the totality of the circumstances, not simply the length of time that has passed between the event and the statement, that determines whether a hearsay statement was an excited utterance; further, MRE 803(2) (excited utterance exception) does not require corroboration—the declarant’s statement is sufficient to prove the existence of the startling event).

(the proponent of the excited utterance has the burden to show by a preponderance of the evidence that each element of the excited utterance exception to the hearsay rule is met). 

(with respect to the excited utterance exception to the hearsay rule, the members must first determine whether a declarant had personal knowledge of what the declarant stated; a military judge’s analysis on this point is confined to whether a reasonable member could find that the declarant had personal knowledge; second, the members must determine what weight to give hearsay statements, and how to interpret them; a military judge oversteps when he or she searches for alternative theories and forces the government to prove to him or her what weight to give hearsay statements). 

(the statements of appellant’s son to appellant’s neighbor (“He’s beating my mom. He’s beating my mom.” and “You better not hit her again.”) qualified as excited utterance exceptions to the hearsay rule where the statements were both excited and not the product of reflection, the alleged event that prompted the statements was startling, and appellant’s son was still under the excitement of the startling event when he made his statements).    

(the statement of appellant’s wife to appellant’s neighbor (“He hit me.  He hit me.”) and her statement to a 911 operator (that her husband had “been beating me for the last couple of hours”) qualified as excited utterance exceptions to the hearsay rule where the statements were both excited and not the product of deliberation, the alleged event that prompted the statements was startling, and appellant’s wife was still under the excitement of the startling event when she made her statements). 

with respect to the excited utterance exception to the hearsay rule, there is not a relevant distinction between a declarant being “scared” or being “excited;” the term “excited” means “emotionally aroused; stirred;” the term “scared” means a “condition or sensation of sudden fear” or a “general state of alarm;” clearly, being scared is simply a heightened state of excitement). 

2016 (October Term)

United States v. Bowen, 76 M.J. 83 (the excited utterance exception to the hearsay rule in MRE 803 provides for the admissibility of a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition). 

(the implicit premise of the excited utterance exception is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of a lack of opportunity to fabricate).

(to determine whether a hearsay statement qualifies as an excited utterance, it must pass a three-pronged test: (1) the statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation; (2) the event prompting the utterance must be startling; and (3) the declarant must be under the stress of excitement caused by the event); and relevant to the third prong of this inquiry is the physical and mental condition of the declarant).

(under certain circumstances, a nonverbal hearsay statement such as a head nod might qualify as an excited utterance).

(in this case, the victim’s nodding of her head in response to a question from a law enforcement officer asking her whether her husband beat her was not admissible in evidence as excited utterance exception to the hearsay rule where the military judge did not adequately consider the victim’s mental capacity at the time in question; given the extent of the victim’s injuries in this case — including a subdural hematoma, a traumatic brain injury, seventy percent loss of vision, and the loss of smell — and the fact that her blood alcohol level was nearly three times the legal limit permitted for driving, whether the victim was mentally capable of understanding the question posed to her when she nodded her head is critical to deciding whether her nonverbal statement was admissible as an excited utterance). 

2003

United States v. Feltham, 58 MJ 470 (this Court has articulated a three-prong test for a statement to qualify as an excited utterance:

(1) the statement must be spontaneous, excited, or impulsive rather than the product of reflection and deliberation; (2) the event prompting the utterance must be startling, and; (3) the declarant must be under the stress of excitement caused by the event).

(the theory underlying the admission of an excited utterance is that persons are less likely to have concocted an untruthful statement when they are responding to the sudden stimulus of a startling event; this Court has recognized that the implicit logical premise for admission of an excited utterance is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of a lack of opportunity to fabricate).

(this Court has stated that the time between the startling event and the excited utterance is one factor to consider when determining whether a statement qualifies as an excited utterance; however, this Court has also stated that a lapse of time between the event and the utterance creates a strong presumption against admissibility).

(the lapse of any particular period of time is not the focus of the excited utterance rule; the critical determination is whether the declarant was under the stress or excitement caused by the startling event).

(the victim's statements to his roommate regarding his being sodomized by the accused were admissible under the excited utterance exception to the rule against hearsay where there was less than one hour lapse of time between the startling event and the utterance; the victim made his statements at the first opportunity; the statements were not in response to questioning; and the victim was still under the stress of the excitement caused by the event).

United States v. Donaldson, 58 MJ 477 (an otherwise inadmissible hearsay statement is admissible under M.R.E. 803(2), even though the declarant is available as a witness, if (1) the statement relates to a startling event, (2) the declarant makes the statement while under the stress of excitement caused by the startling event, and (3) the statement is spontaneous, excited, or impulsive rather than the product of reflection and deliberation).

(the implicit premise underlying the excited utterance exception is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of the lack of opportunity to fabricate; this premise becomes more tenuous where the exciting influence has dissipated and one has had the opportunity to deliberate or fabricate).

(in determining whether a declarant was under the stress of a startling event at the time of his or her statement to qualify as an excited utterance, courts look to a number of factors, to include: the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement; a lapse of time between a startling event and an utterance, while a factor in determining whether the declarant was under the stress of excitement caused by the event, is not dispositive of that issue).

(as a general proposition, where a statement relating to a startling event does not immediately follow that event, there is a strong presumption against admissibility under M.R.E. 803(2); however, courts have been more flexible in cases in which the declarant is young, particularly where the statement was made during the child's first opportunity alone with a trusted adult).

(statements made by a three-year-old to her mother about indecent acts committed by the accused were admissible as excited utterances, even though 11 to 12 hours had elapsed after the abuse, where the accused had threatened to kill the child and her family if she talked about the abuse and where she was not alone with her mother during the day).

2000

United States v. Moolick, 53 MJ 174 (an excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, and is not excluded by the hearsay rule even if the declarant is available to testify).

(military judge abused his discretion in excluding statement of appellant where:  (1) victim burst into another’s room screaming accusations; (2) victim and appellant had an exchange of words during which the victim accused appellant of raping her; (3) appellant appeared upset and agitated; (4) the atmosphere in the room was chaos: and (5) appellant immediately responded with the statement in issue, "You grabbed me.”).

(military judge’s error in excluding excited utterance of appellant was materially prejudicial where:  (1) neither the government nor the defense case was significantly stronger than the other; (2) the excited utterance was highly material; (3) and the quality of the evidence was high).

Forfeiture by Wrongdoing:

2020 (October Term)

United States v. Becker, 81 M.J. 483 (the Sixth Amendment’s Confrontation Clause holds that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; this bedrock procedural guarantee applies to both federal and state prosecutions and is a concept that dates back to Roman times; where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination; one exception to the cross-examination requirement, derived from common law, is the doctrine of forfeiture by wrongdoing, which provides that where an accused’s wrongful actions prevent a witness from testifying, and where those actions were designed to prevent the witness from testifying, admission of out-of-court statements by that witness does not offend the Confrontation Clause). 

(the Constitution does not guarantee an accused person protection against the legitimate consequences of his own wrongful acts; it grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away with the intent to keep the witnesses from testifying, he cannot insist on his privilege). 

(in military practice, the prohibition against the admission of hearsay is contained in MRE 802, and the forfeiture by wrongdoing exception to MRE 802 can be found in MRE 804(b)(6) which allows a statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant’s unavailability as a witness, and did so intending that result). 

(for a statement to qualify under the forfeiture by wrongdoing exception, (1) the party against whom the statement is offered must have wrongfully caused the declarant’s unavailability as a witness, and (2) the party caused the witness’s unavailability with the intent to make that witness unavailable, ie, that the accused intended his or her conduct to prevent the witness from testifying against him or her in court; and with respect to the second prong, the party’s intent, in causing the declarant’s unavailability, need not be motivated solely by the desire to prevent the declarant’s would-be testimony, rather, only that it was a motivating factor in the party’s decision to take such an action).  

(to establish waiver/forfeiture by wrongdoing, the government must demonstrate both that the accused’s actions caused the witness’s unavailability and the accused’s conduct was “designed” to prevent the witness’s testimony; therefore, the accused must have intended to prevent the witness’s testimony before waiver applies and statements are admitted without confrontation). 

(in this case, in light of the available circumstantial evidence that the unavailable witness had previously recanted her testimony against appellant and refused to cooperate with law enforcement, the military judge’s conclusion that appellant’s actions against this unavailable witness were not done with the intention of preventing her testimony were supported by the record; as such, the military judge’s finding of fact on the intent element of the forfeiture by wrongdoing exception to the hearsay rule in MRE 804(b)(6) was not clearly erroneous, and the military judge did not abuse his discretion in finding that the circumstantial evidence did not warrant an inference that appellant acted with such an intention). 

Medical exception:

2008 (Transition)

United States v. Cucuzzella, 66 M.J. 57 (the hearsay rules permit admission of statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment).

(for statements to be admissible under the medical exception to the hearsay rule, the statements must first be made for the purposes of medical diagnosis or treatment, and second, the patient must make the statements with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought). 

(the medical exception to the hearsay rule is premised on the theory that the declarant has an incentive to be truthful because he or she believes that disclosure will enable a medical professional to provide treatment or promote the declarant’s own well-being). 

(the medical exception to the hearsay rule has been broadened to include persons outside the medical profession, who perform health care functions and receive statements for the purpose of medical diagnosis; for instance, the rule includes statements made to nonmedical personnel as long as they are made for the purpose of seeking treatment; as a result, the reach of the medical hearsay exception is potentially extremely broad). 

 
(in determining whether a statement was made with some expectation of receiving medical benefit or treatment, a military judge’s finding as to the declarant’s state of mind in making a statement is a preliminary question of fact under MRE 104(a); as such, it will be set aside only if clearly erroneous; in making this determination, the military judge should look to the circumstances surrounding the proffered testimony to determine that the appropriate indicia of reliability are present).

 
(in contexts where the medical purpose and benefit may be less apparent, the medical exception to the hearsay rule should not be applied in a rote or mechanical manner; rather, its application should depend on the identification of indicia that the elements and the purposes of the exception are met; for example, in cases involving statements by young children, where the medical purpose behind a visit might well be apparent to an adult, an appellate court has looked to see if the military judge has found indicia that the child herself was cognizant of the medical purpose of the visit). 

 
(when statements made by a patient to a psychiatrist are offered under medical exception to the hearsay rule, the military judge must determine that the statements were elicited under circumstances which made it apparent to the patient that the psychiatrist desired truthful information and that only by speaking truthfully would he receive the desired benefits from the psychiatric consultation; where the mental health diagnosis and treatment is offered in the context of marital counseling, declarants may well have mixed motives as well as ulterior motives behind their words; so too, the reliability of the statements at issue may be clouded by emotional distress). 

(in this case, statements that the accused’s wife made to a family advocacy nurse regarding sexual and physical abuse she suffered at the hands of the accused were admissible under the medical exception to the hearsay rule, where the family advocacy nurse was engaged in mental health diagnosis and referral, the statements were made with some expectation of receiving medical benefit or treatment, and the nurse did not play the role of a law enforcement agent and there was no indication of an established relationship between the nurse and law enforcement authorities; here, the nurse’s notes taken during the disclosure of the abuse appear typical to the nursing practice, suggesting diagnoses and treatment, the wife’s unnerved demeanor during her discussion of the abuse corroborates her motivation for seeking treatment, and the detailed discussion of the history and progression of abuse resembles statements made to a psychiatrist for diagnosis or treatment through counseling). 

2006

United States v. Rodriguez-Rivera, 63 M.J. 372 (MRE 803(4) provides an exception to the general hearsay rule and allows the admission of statements made for the purpose of medical diagnosis or treatment; statements which are offered as exceptions to hearsay under MRE 803(4) must satisfy two conditions: first the statements must be made for the purposes of medical diagnosis or treatment; and second, the patient must make the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought).    

(the referral of a victim to a medical professional by trial counsel is not a critical factor in deciding whether the medical exception applies to the statements that the victim gave to those treating her; the critical question is whether she had some expectation of treatment when she talked to the caregivers).

(the military judge did not abuse his discretion in admitting statements made by a child sexual abuse victim to a pediatrician under the medical exception to the hearsay rule of MRE 803(4), where that decision was based upon the not-clearly-erroneous findings that the pediatrician saw the child for the purpose of medical diagnosis and treatment, and that the child expected to receive medical treatment when she saw the pediatrician). 

2003

United States v. Donaldson, 58 MJ 477 (under M.R.E. 803(4), certain hearsay statements made to medical personnel are admissible even though the declarant is available as a witness, including statements made for the purposes of medical diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment).

(M.R.E. 803(4) is not limited to statements made to licensed physicians; statements made to psychologists, social workers, and other health care professionals may well fall within the purview of the medical-treatment exception to the hearsay rule).

(statements offered under M.R.E. 803(4) must satisfy two requirements to be admissible: first the statements must be made for the purposes of medical diagnosis or treatment; and second, the patient must make the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought; while both requirements must be met, the critical question in this inquiry is whether the patient had some expectation of treatment when she talked to the caregivers).

(the key factor in determining whether a particular statement is embraced by the medical-treatment exception is the state of mind or motive of the patient in giving the information to the physician and the expectation or perception of the patient that if he or she gives truthful information, it will help him or her to be healed; because a small child may not be able to articulate that he or she expects some benefit from treatment, where a child is involved, it is often important for their caretakers to explain to them the importance of the treatment in terms that are understandable to the child).

(statements made by a three- year-old to a child clinical psychologist about indecent acts committed by the accused were admissible under the medical-treatment exception where the psychologist told the child that she was a doctor who would help make her feel better and where the child’s mother told her that they were going to see a doctor who would help her get better and get over her nightmares, rages, and crying; there was sufficient evidence to find that the child had an expectation of receiving a medical benefit by talking with the psychologist).

2002

United States v. Hollis, 57 MJ 74 (“medical exception” [Mil.R.Evid. 803(4)] is a firmly rooted exception to the hearsay rule, and, as such, it satisfies the constitutional right of confrontation; thus, there is no need to establish that the declarant is unavailable as a witness).

(under Mil.R.Evid. 803(4), the medical exception, the proponent of the evidence must establish that (1) the statements were made for the purposes of medical diagnosis or treatment, and (2) that the declarant made the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought).

(under Mil.R.Evid. 803(4), the medical exception, the key factor in deciding if the declarant made the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought is the state of mind or motive of the patient in giving the information and the expectation or perception of the patient that if he or she gives truthful information, it will help him or her to be healed).

(under Mil.R.Evid. 803(4), the medical exception, the determination whether the patient has the requisite state of mind is a preliminary question of fact, and, as such, it will be overturned on appeal only if clearly erroneous).

(a child-victim’s expectation of receiving medical treatment may be established by the testimony of the treating medical professionals, and the record must support the military judge’s determination that the child had the requisite understanding and expectation of a medical benefit to satisfy the subjective prong, even if the military judge relies on the doctor’s testimony to establish the factual predicate for this determination).

(military judge did not abuse his discretion by permitting a doctor to testify about child abuse victim’s responses to his questions during his medical history interview; record established child’s expectation of receiving medical treatment where: (1) child was taken to doctor’s office at the Naval Hospital shortly after making an emotional disclosure to her nanny; (2) child had been treated previously by the same doctor and knew that he was a doctor; and (3) child indicated that she understood the need for truthful answers so that the doctor could determine what had happened, in order to treat her).

(for purposes of medical exception to hearsay rule, doctor was acting for medical reasons and not in complicity with law enforcement personnel where: (1) doctor said he needed to see the victim immediately because it was a medical emergency; (2) when the child arrived at his office, doctor told investigator that he wanted to interview child; and (3) the impetus for the interview was doctor’s concern about a medical emergency, not a request from law enforcement for investigative assistance).

(child’s responses to questions asked by criminal investigator were not admissible under the medical exception).

(military judge did not abuse his discretion by admitting doctor’s testimony under medical exception to hearsay rule where:  (1) doctor examined two children, at defense counsel’s request, to determine if they had been physically and emotionally traumatized; (2) the record reflects that one child knew the doctor was a medical doctor; (3) the child asked to see the doctor; (4) the child addressed the doctor as “Doctor C”; and (5) the child knew the doctor needed truthful answers to help her).

(military judge did not abuse his discretion by admitting doctor’s testimony under medical exception to hearsay rule where:  (1) doctor examined the children, at defense counsel’s request, to determine if they had been physically and emotionally traumatized; (2) the child indicated that she knew the officer was a doctor; (3) the child demonstrated that she knew doctors help children, spontaneously announcing that a doctor had treated her skin rash; (4) child told doctor that she understood the need for truthful answers so that doctor could make her better; and (5) the doctor’s professional assessment was that the child knew she was a doctor who helped children and that the child understood the need to tell the truth).

Public records and reports:

2005

United States v. Taylor, 61 M.J. 157 (MRE 803(8) creates several hearsay exceptions that permit the introduction of hearsay within certain records or reports from public offices or agencies, including public records that describe matters observed pursuant to duty imposed by law as to which matters there was a duty to report; the exception does not apply to matters observed by police officers and other personnel acting in a law enforcement capacity; nor does the exception apply to documents if the sources of information or other circumstances indicate lack of trustworthiness).
 
(unlike its counterpart in the Federal Rules of Evidence, MRE 803(8) provides a further exception for specific types of public records that are admissible even if they do not satisfy one of the categories specified by the rule; this exception includes morning reports and other personnel accountability documents if made by a person within the scope of the person’s official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event and to record such fact or event; under this exception, a standard personnel accountability document such as a morning report is admissible if it meets the above criteria, even if the document records a matter observed by law enforcement personnel). 
 
(a declaration of desertion message was not admissible under MRE 803(8)’s specific exception to the hearsay rule for personnel accountability documents where the message was not a routine accountability document and where, in addition to the information concerning desertion, there was unreadable content on the document that was indecipherable even to the party attempting to introduce it).
 
(a declaration of desertion message was not admissible under MRE 803(8)’s public record exception to the hearsay rule for matters observed pursuant to duty imposed by law as to which matters there was a duty to report where the Government was unable to explain the unreadable content on the document, thus failing to satisfy the exception’s trustworthiness requirement). 
 
(a declaration of return from desertion message was inadmissible hearsay where the preparer of the document obtained the information in the message from a movement authorization document and a DD 553 arrest warrant and neither of those hearsay documents was admissible under a hearsay exception). 
 
(arrest warrants based upon the observations of persons acting in a law enforcement capacity are not admissible under MRE 803(8)(B)).
 

Residual hearsay:

2008 (Transition)

United States v. Czachorowski, 66 M.J. 432 (although the proponent of out-of-court statements to be admitted under the residual hearsay exception of MRE 807 must give the adverse party advance notice of the statements in order to allow the adverse party to challenge the statements’ admission and substance, a formal notice requirement – that is, oral or written notification of the intended use of MRE 807 - is clearly absent from the rule, and the CAAF adopts a flexible approach to the notice requirement; in this regard, any advance notice applies to the statements, not to the means by which the proponent intends to seek admission of those statements; in this case, where the trial defense counsel admitted that he knew of the witness’s statements and trial counsel’s intention to admit them into evidence as excited utterances under MRE 803(2) long before trial, that satisfied the notice requirement of MRE 807). 

(the residual hearsay exception embraced by MRE 807 permits, in rare circumstances, the introduction of hearsay testimony otherwise not covered by MRE 803 or MRE 804 where, given equivalent circumstantial guarantees of trustworthiness, the military judge determines that (1) the statement is offered as evidence of a material fact, (2) the statement is more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts, and (3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence; prong 2 balances the probativeness of available evidence, and requires the proponent of the evidence to show he could not obtain more probative evidence despite reasonable efforts; failure to meet that burden renders the evidence inadmissible). 

(a trial counsel’s bare assertion of a declarant’s unavailability does not satisfy the government’s burden to prove the unavailability of other direct and more probative evidence on point to satisfy the residual hearsay exception of MRE 807; a trial judge cannot take it for granted that a declarant of any age is unavailable or forgetful, and then admit hearsay testimony under the residual exception instead; absent personal observation or a hearing, some specific evidence of reasonable efforts to obtain other probative evidence is still required under MRE 807). 

(the military judge abused his discretion when he admitted into evidence a child victim’s out-of-court statements under the residual hearsay exception of MRE 807, where the judge relied on the trial counsel’s bare, uncorroborated assertion that the victim was unavailable to testify and ignored the government’s burden to prove that reasonable efforts could not be made to bring the victim in to testify herself). 

2003

United States v. Holt, 58 MJ 227 (MRE 807 requires that a statement offered for admissibility under the residual hearsay rule be more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; the court below abused its discretion by misapplying this foundational requirement, looking at the evidence that was produced rather than at evidence that could have been produced on victim impact).

(MRE 807 requires notice sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it; this notice requirement has critical significance in light of the foundational requirements supporting residual hearsay; nothing in the record indicates that appellant was provided any notice pursuant to MRE 807 before trial or before appellate proceedings that would afford him an adequate opportunity to prepare to challenge the admissibility of the document as residual hearsay; accordingly, the court below abused its discretion by ignoring this foundational requirement).

(the residual-hearsay exception is intended to apply only to highly reliable and necessary evidence).

(where the declarant testifies and the Sixth Amendment’s Confrontation Clause is satisfied, reliability of the residual-hearsay evidence may be established by the circumstances that immediately and directly surround the making of the declaration as well as corroboration by other evidence extrinsic to the declaration; the necessity prong essentially creates a best evidence requirement; this prong may be satisfied where a witness cannot remember or refuses to testify about a material fact and there is no other more probative evidence of that fact).

(a military judge’s decision to admit residual hearsay is entitled to considerable discretion on appellate review).

(the military judge did not abuse his discretion by admitting four statements of the victim as residual hearsay despite appellant's contentions that the evidence was not reliable because the victim was under the influence of drugs and possibly hallucinating and that the evidence was not necessary because the victim testified; the reliability prong was met because the doctors testified that the victim was very coherent and the military judge was able to view the videotaped statements and make his own independent evaluation of the victim's mental condition; and the necessity prong was met because the statements were the only evidence supporting the charges of rape and forcible sodomy and the only evidence corroborating appellant’s confession to committing indecent acts).

(M.R.E. 807 is a residual hearsay exception rule, permitting a party to introduce hearsay evidence that does not otherwise fall under the exceptions contained in M.R.E.s 803 and 804, where certain requirements are met; a statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence; however, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement, and the particulars of it, including the name and address of the declarant).
 
(in determining whether a statement is supported by circumstantial guarantees of trustworthiness for purposes of the residual hearsay exception, a number of indicia of reliability are looked to, including, among other things: (1) the mental state of the declarant; (2) the spontaneity of the statement; (3) the use of suggestive questioning; and (4) whether the statement can be corroborated; other indicators of reliability may include the declarant’s age or the circumstances under which the statement was made).

(statements made by a three- year-old to a police investigator about indecent acts committed by the accused had sufficient circumstantial guarantees of trustworthiness to be admissible under the residual hearsay exception where the child’s spontaneous act of pulling her panties aside and placing her finger by her vaginal area was an unusual event that supports a finding of reliability, where her statements were corroborated by admissible circumstantial evidence (i.e. statements made to her mother and a child clinical psychologist), and where her statements contained the degree of specificity normally associated with reliable statements (i.e. she was able to identify who touched her, where she was touched, and the manner in which the touching occurred).

State of mind:

2007

United States v. Roberson, 65 M.J. 43 (MRE 803(3) provides the hearsay exception for statements of then existing mental, emotional, or physical condition:  a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will). 

(out-of-court hearsay statements which reflect the declarant’s state of mind as to intent are admissible to prove that the declarant’s intent subsequently was carried out; factors such as a statement’s vagueness go only to the weight to be given the evidence and not to its admissibility). 

(military judge abused his discretion when he prevented the accused from presenting evidence under the state of mind hearsay exception in support of his affirmative defense of duress; the testimony of a witness that the accused’s co-actor told him that the accused owed him money for disposing of some of the co-actor’s drugs and that he was willing to get his money by any necessary means fell within the hearsay exception for a declarant’s existing mental state and intent and could be used to show that the co-actor’s intent was carried out). 

2006

United States v. Dobson, 63 M.J. 1 (evidence of a victim’s specific prior acts of violence known to the defendant may be admitted to show appellant’s state of mind at the time of the victim’s death).

(the military judge abused his discretion in court-martial of accused for premeditated murder of her husband in excluding the proposed testimony of witnesses that her husband threatened to kill her on two occasions; the testimony was admissible to show the accused’s state of mind at the time of the murder, and thereby establish the intent element of self-defense).

2003

United States v. Holt, 58 MJ 227  (under MRE 803(3), a relevant state of mind may be proven by the person’s own, out-of-court, uncross-examined, concurrent statements as to its existence; documents and markings on the backs of the bad checks created by third parties cannot be used to reflect appellant’s state of mind).

2005

United States v. Rhodes, 61 M.J. 445 (MRE 804(b)(3) permits the admission of a statement against interest, which includes a statement that so far tended to subject the declarant to criminal liability that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true; the rule is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true; but courts must be cautious when considering statements offered under this hearsay exception; only those statements that are truly self-inculpatory are admissible under this rule; statements that are not self-inculpatory are not admissible, even if they are included within a broader narrative that is generally self-inculpatory; whether a statement is self-inculpatory or not can only be determined by viewing it in context; so the admissibility of a statement against interest must be evaluated in light of all the surrounding circumstances).

(admissions of co-actor implicating the accused in drug offenses were self-inculpatory and admissible under MRE 804(b)(3) as statements against his penal interest; a declarant’s statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefendant; those portions of the co-actor’s statement in which he admitted buying drugs, taking them onto base, using them, and providing them to others were clearly self-incriminatory; those portions of his statement indicating that the accused was with him when he bought drugs and that the accused and his girlfriend used and possessed some of those drugs were also self-inculpatory; the question under MRE 804(b)(3) is always whether the statement was sufficiently against the declarant’s penal interest that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true; the portions of the co-actor’s statement that implicated the accused satisfied that test).

United States v. Scheurer, 62 M.J. 100 (the Confrontation Clause forbids the admission of testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify, and the accused had had a prior opportunity for cross-examination; in this case, this rule did not apply to preclude the admission of pretrial conversations between the accused’s wife and a co-worker during which the accused’s wife implicated both her husband and herself in ongoing drug offenses because the wife’s statements were not testimonial, where the government’s role in obtaining the statements amounted only to the facilitation of the recording of the wife’s statements and no direction or suggestion). 

(admission of pretrial hearsay statements by the accused’s wife to a co-worker implicating both her husband and herself in ongoing drug offenses did not violate the Confrontation Clause, where the wife was unavailable to testify by reason of her invocation of the spousal incapacity rule, and the statements bore particularized guarantees of trustworthiness that warrant their admissibility and overcome the presumption of unreliability attaching to a declarant’s statement implicating an accomplice; the statements were truly self-incriminatory and a reasonable declarant in her position would not have made the statements to another military member unless she believed them to be true).

2002

United States v. Benton, 57 MJ 24 (to gain admission of exculpatory hearsay testimony under Mil.R.Evid 804(b)(3), it is appellant’s burden to show, inter alia, that:  (1) the declarant was unavailable to testify at trial, (2) the statement was against the declarant’s penal interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement).

(appellant failed to show out-of-court statement was actually against declarant’s penal interests; it did not sufficiently expose declarant to criminal liability to the extent that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true; the statement was evasive on its face and fell far short of an unambiguous admission to coercing appellant to commit a crime by pointing a gun at him; and the declarant attempted to diminish his culpability by blaming his conduct on overindulgence in alcohol).

(exculpatory hearsay testimony under offered Mil.R.Evid 804(b)(3) must have corroborating circumstances which clearly indicate the trustworthiness of the out-of-court statement).

(appellant had a heavy burden to establish corroborating circumstances clearly indicating the trustworthiness of exculpatory hearsay testimony offered under Mil.R.Evid 804(b)(3)).

(the record failed to support the trustworthiness of exculpatory hearsay testimony offered under Mil.R.Evid 804(b)(3) because:  (1) the out-of-court declarant had a motive for misrepresentation; (2) in view of the numerous serious offenses charged against the declarant, there was a low probability he would ever be additionally charged or punished for aggravated assault on his appellant or perjury: (3) nobody else heard the statement; (4) the statement was made in circumstances suggesting that it was mere jailhouse braggadocio; and (5) the purported statement was not made spontaneously).