Generally:
2023 (October Term)
United States v. Hasan, 84 M.J. 181 (res gestae is defined as the events at issue, or other events contemporaneous with them; res gestae evidence is vitally important in many trials; it enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation).
(in this capital murder case, the military judge did not err by admitting into evidence the fact that one of the victims was pregnant at the time she was shot and that she shouted "My baby! My baby!"; the evidence of the victim's pregnancy and her screams were properly admitted as res gestae, where witnesses to the shooting testified to what they heard her shout before the shooting, where her supervisor testified as to why she was at the scene of the shooting, and the medical examiner's testimony only confirmed what the members had already heard – that she was pregnant).
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. Tearman, 72 M.J. 54 (whether admitted evidence constitutes testimonial hearsay is a question of law reviewed de novo).
(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; 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; to make this determination, fine distinctions based on the impetus behind the testing and the knowledge of those conducting laboratory tests at different points in time are treated as relevant considerations, but not as dispositive factors; moreover, the formality of a statement is a factor to be considered when determining whether the statement is testimonial for the purposes of the Confrontation Clause).
(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)).
(statements of the official drug test result and certification on the specimen custody document, DD Form 2624, were testimonial statements and their admission was error.
2010 (September Term)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”).
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)).
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
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
(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
(in this case, the government did not meet
its
foundational burden of demonstrating that the accused understood and
acquiesced
in the alleged adoptive
(adoptive
(the defendant’s own confession is probably
the most
probative and damaging evidence that can be admitted against him; here
the
alleged adoptive
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).
(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).
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).
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).
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).
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).
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)).
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).
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).