HEARSAY – The Rule Against Hearsay

Rule 802.  Hearsay Rule

Hearsay is not admissible except as provided by these rules or by any Act of Congress applicable in trials by court-martial.

The Necessary Definitions.

Rule 801.  Definitions

The following definitions apply under this section:
(a)  Statement.  A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(c)  “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Statement, oral or written, not made at trial, offered to prove the truth of the matter asserted.

Nonverbal conduct intended as an assertion (e.g., nod of the head) also may be a “statement” pursuant to Rule 801(a)(2). It follows that a nonverbal act that was not an intentional substitute for a verbal expression would not be a statement.

Under Mil. R. Evid. 801(b), the declarant is a “person” who makes a statement, not a machine or a bloodhound.  Machines, like computers, enter the picture when a person enters data (“statements”) into them.

Out-of-court means that at the time the person made the statement, the person was not in the courtroom, unless it satisfies the requirements of Mil. R. Evid. 801(d).

Proving the Truth of the Matter Asserted:  This is the definitional prong that addresses the advocate’s need to cross-examine the declarant.  The proponent must offer the statement to prove the truth of an assertion contained in the statement.

If the statement is logically relevant to another theory, it is nonhearsay.  In other words, the value of the statement lies in the fact that it was made.  For example, an uttered statement that constitutes an element of an offense is not hearsay, but may be called an operative fact or a verbal act, e.g.:  disrespectful language; swearing, provoking language, threats, etc.

Other common nonhearsay uses include using the statement as circumstantial evidence of the declarant’s state of mind (e.g, premeditation), using the statement to show its effect on the state of mind of the hearer or reader.

Exemptions From Hearsay.

Rule 801(d)  Statements which are not hearsay.  A statement is not hearsay if:

                (1)  Prior statement by witness.  The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or  (C) one of identification of a person made after perceiving the person;

A prior statement of identification of a person made after perceiving the person is admissible as substantive evidence of guilt.  Mil. R. Evid. 801(d)(1)(C). The foundation includes:

The witness is on the stand subject to cross-examination;

The testifying witness made a prior out-of-court identification of a person;

Where and when the identification occurred;

Who was present.

United States v. Thomas,  41 M.J. 732 (N.M.Ct.Crim.App. 1995).  While receiving treatment for injury to head, victim identified accused as his assailant to wife and nephew.  Testimony presented during government’s case-in-chief, following victim’s in-court identification of the accused.  Court finds this prior out-of-court identification constituted hearsay and not admissible under any authorized exception or exemption to the hearsay rule.  The provisions of MRE 801(d)(1)(C) only apply to lineups, show-ups or photographic identifications, not to other prior consistent statements introduced simply to bolster the witness’ in-court testimony.

Admissions of a Party-Opponent.

Mil. R. Evid. 801(d)(2)(A).

Rule 801(d)(2).  A statement is not hearsay if . . . [t]he statement is offered against a party and is (A) the party’s own statement in either the party’s individual or representative capacity, or (B) a statement of which the party has manifested the party’s adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment of the agent or servant, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.  The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

The logical underpinning of the admissions doctrine derives from the simple fact that a party cannot be heard to complain that it should have an opportunity to cross-examine itself.  There are three kinds of admissions:  personal, adoptive, and vicarious.

Personal admissions are statements by the party, and should not be confused with statements against interest in Mil. R. Evid. 804(b)(3).  The latter derives its guarantee of reliability from the fact that it was against the declarant’s interest when made.  No similar rule is imposed on the admission, although for the accused there frequently will be constitutional and statutory rights that must be protected.

The proponent must show:
The declarant, identified by the witness as the accused, made a statement;
If rights warning necessary, the accused was warned of his or her rights and waived them;
The oral or written statement was voluntary;
The statement is offered against the accused.

Adopted admissions.  See, e.g., United States v. Potter, 14 M.J. 978 (N.M.C.M.R. 1982)(accused adopted another’s statement when he introduced it at his own magistrate’s hearing).

The doctrine requires proof that the declarant made a statement in the party’s presence;
The party heard, read, or understood the statement;
The party made a statement which expressed agreement with the declarant’s statement;
The statement is offered against the party.

Where a “tacit admission” is averred, that is, an adoption by silence, the critical inquiry is whether the accused was faced with self-incrimination issues (i.e., official questioning).  If not, the proponent must show the accused had the opportunity to deny the statement, that a reasonable innocent person would have denied it, and that the accused did not do so.

Vicarious admissions.  While this exemption can cover authorized spokespersons or agents, the most common use is the co-conspirator’s statement:

The proponent must show a conspiracy existed;
The declarant was part of the conspiracy at time of statement;
The statement was made in furtherance of the conspiracy;
The statement was offered against the accused.
United States v. Evans, 31 M.J. 927 (A.C.M.R. 1990):  Co-conspirator’s explanation of conspiracy to his wife to quiet her concerns were “in furtherance of the conspiracy” and admissible.  Burden for establishing the existence of a conspiracy is a preponderance of the evidence.  Judge may consider any evidence – including the proffered statement- in determining the existence of a conspiracy and the accused’s participation in it.  Bootstrapping permitted.
United States v. Swan, 45 M.J. 672 (N.M. Ct. Crim. App. 1996).  Alleged accomplice made statement after alleged conspiracy ended.  Error waived by failure to object.

Common Hearsay Exceptions.

Present Sense Impressions and Excited Utterances.

Rule 803.  Hearsay exceptions; availability of declarant immaterial

The following are not excluded by the hearsay rule, even though  the declarant is available as a witness:
(1)   Present sense impression.  A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.

(2)   Excited utterance.  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.

Present sense impression, unlike excited utterance, does not require the perceived event to be a startling one.  It does, however, apply only to statements made at the time the event is “perceived” or “immediately thereafter.”

The proponent must show:

An event occurred;
The declarant had personal knowledge of the event;
The declarant made the statement soon after the event;
The statement “describes or explains” an event.

United States v. Brown, 48 M.J. 578 (Army Ct. Crim. App. 1998).  The issue in this case dealt with statements the accused made to CID.  One CID agent (agent 1) interviewed the accused on rape charges.  Agent 1 testified that the accused never admitted holding the victim down while others had sex with her.  However, another CID agent (agent 2) said that agent 1 told him that the accused had orally admitted to holding the victim.  The Govt. sought to introduce the statement from the agent 1 to agent 2 regarding the victim’s admission.  Their theory was as a present sense impression under 803(1).  Court said this theory would work but it failed in this case because there was no evidence that the statement by agent 1 to agent 2 was contemporaneous with the accused’s admission.

The excited utterance requires a showing that the event occurred; was startling; the declarant was acting under the stress of excitement cause by the event; and stmt “relates” to a startling event.

The time element or factor may determine whether the declarant was acting under the stress of excitement.  See United States v. Arnold, 25 M.J. 129 (C.M.A. 1987), cert. denied, 484 U.S. 1060 (1988) (12 hours until first opportunity); United States v. Le Mere, 22 M.J. 61 (C.M.A. 1986) (3 year-old victim after 16  hours); United States v. Armstrong, 30 M.J. 769 (A.C.M.R. 1990) (4 to 5 days too long for an excited utterance), rev’d, 36 M.J. 311 (1993); United States v. Knox, 46 M.J. 688 (N.M. Ct. Crim 1996). App. 1997) (one year too long).

See also United States v. Miller, 32 M.J. 843 (N.M.C.M.R. 1991), aff’d, 36 M.J. 124 (C.M.A. 1992).  Spontaneous statement by crying, upset student to teacher concerning her father’s sexual molestation 18 hours earlier held admissible.  Focus is not on lapse of time since the exciting incident, but whether declarant is under stress of excitement so as to lack opportunity to reflect and to fabricate an untruthful statement.  See also United states v. Morgan, 40 M.J. 405 (C.M.A. 1994), cert. denied, 115 S. Ct. 907 (1995) (textbook example of excited utterance).

United States v. Pearson, 33 M.J. 913 (A.F.C.M.R. 1991).  In trial for forcible sodomy of a six-year-old boy, three-hour lapse between abuse and excited utterance was reasonable.  Time period, while relevant, is not dispositive.  Fact that excited utterance was in response to mother’s questions is not a barrier to admission where the statement is otherwise trustworthy.

United States v. Moolick, 53 M.J. 174 (2000).  Accused convicted in a date rape scenario.  When the victim confronted the accused, the accused said that the victim grabbed him first.  The accused did not testify but the defense wanted to introduce this statement as an excited utterance.  The MJ did not admit the statement and CAAF ruled it was prejudicial error and reversed the conviction

United States v. Grant, 42 M. J. 340  (1995).  Accused charged with various sexual offenses against his seven-year-old stepdaughter.  Trial counsel offered victim’s statements made to family friend 36-48 hours after one of the alleged incidents, both as excited utterance and residual hearsay.  MJ admits as excited utterance but rejects as residual hearsay.  While passage of time is not dispositive, CAAF concluded the requirements of 803(2) were not met where, as here, statements were the product of sad reflection and not made under the stress or excitement of the event.  The statement was, however, admissible under the residual exception based on its spontaneity, lack of suggestiveness, corroboration, the non-threatening home environment, and its general similarity to an excited utterance.  Case demonstrates the importance of using alternative theories for admissibility of evidence.

 

The proponent must show:

A startling or stressful event occurred; (determining what qualifies as a “startling” event is normally not difficult – rape, assault, accident.  United States v. Haner, 49 M.J. 72 (1998).  However, compare United States v. Napier, 518 F.2d 316 (9th Cir.), cert. denied, 423 U.S. 895 (1975) (any relevant transaction may qualify) with United States v. Knox, 46 M.J. 688 (N.M. Ct. Crim. App. 1997 (startling event must be the event forming basis of prosecution).
The declarant had personal knowledge of the event;
The declarant made a statement about the event;
The declarant made the statement while he or she was in a state of nervous excitement.

United States v. Barrick, 41 M.J. 696 (A.F. Ct. Crim. App. 1995):  Stress of recalling events is different from stress caused by those events.  In this case, the military judge abused his discretion in admitting a statement under Rule 803(2).

Statements for purposes of medical diagnosis or treatment.

Rule 803.  Hearsay exceptions; availability of declarant immaterial

The following are not excluded by the hearsay rule, even though  the declarant is available as a witness:

(4)  Statements for purposes of medical diagnosis or treatment.  Statements made for 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.

United States v. Ureta, 44 M.J. 290 (1996), cert, denied, 117 S. Ct. 692 (1997):  Proponent must show declarant had some expectation of promoting well being (and thus incentive to be truthful), and statement was made for purposes of medical diagnosis or treatment.  Statements made to medical doctor and social worker satisfied those requirements in this case.  United States v. Cox, 45 M.J.  153 (1996).

See also United States v. Faciane, 40 M.J. 399 (C.M.A. 1994) (Confession to committing indecent acts was not adequately corroborated by the victim’s statements to a member of the Child Protective Committee at a local children’s hospital. The statements were inadmissible hearsay, since the Committee member did not hold herself out as a doctor and the child did not know her conversation was in any way related to medical diagnosis or treatment).

If stmt is in response to questioning, the questioning must be of medical necessity. United States v. Haner, 49 M.J. 72 (1998).

Exception requires declarant to have made the statement with some awareness it was pertinent to his or her treatment (expectation of treatment prong) and that statement was actually for the purposes of medical treatment (medical diagnosis prong).  As small children typically can not articulate that they expected some benefit from treatment, it is important that someone, like a mother or father, explain to them why they are going to the doctor, the importance of the treatment, and they need to tell what happened to feel better.  CAAF also recommends the caretakers identify themselves, as such and engage in activity which could be construed as treatment by the child. United States v. Siroky, 44 M.J. 394 (1996).

Recorded Recollection.

Rule 803.  Hearsay exceptions; availability of declarant immaterial

The following are not excluded by the hearsay rule, even though  the declarant is available as a witness:

(5)  Recorded recollection.  A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.  If admitted, the memorandum or record may be read into evidence, but may not itself by received as an exhibit unless offered by an adverse party.

Foundation and Procedure

Attempt refreshing memory.
Establish that the memory of the witness cannot be refreshed.
Establish that this witness made a record when the matter was fresh in the memory of this witness.
Establish that the record made accurately reflects the knowledge of the witness at the time of the making.
Have the witness read the recorded recollection into evidence.

Note:  The record could be marked as a prosecution or defense exhibit for identification, or as an appellate exhibit.  It should not be admitted unless offered by the adverse party.  Attach it to the record of trial.  It should not go to the deliberation room unless offered by the adverse party.

United States v. Gans, 32 M.J. 412 (C.M.A. 1991).  Excellent case detailing the differences between using writings to refresh memory under MRE 613 and writings used to establish past recollection recorded under MRE 803(5).

Records of Regularly Conducted Activities (Business Records).

(6)           Records of regularly conducted activity.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.  The term “business” as used in this paragraph includes the armed forces, a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.  Among those memoranda, reports, records, or data compilations normally admissible pursuant to this paragraph are enlistment papers, physical examination papers, outline-figure and fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.

(7)           Absence of entry in records kept in accordance with the provisions of paragraph (6).  Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

 

Bank Records.

Must lay the foundation specified in the Rule:  Timely recording by a regularly conducted business activity in accordance with a regular practice of recording.
When laying the business records foundation, witness familiarity with the records-keeping system must be sufficient to explain the system and establish the reliability of the documents.  Witnesses need not be those who made the actual entries or even the records custodian. United States v. Garces, 32 M.J. 345 (C.M.A. 1991) and United States v. Tebsherany, 32 M.J. 351 (C.M.A. 1991).
United States v. Brandell, 35 M.J. 369 (C.M.A. 1992).  Bank records not admissible under this provision unless a custodian or other qualified person testifies.

NCIC Reports.  United States v. Littles:  35 M.J. 644 (N.M.C.M.R. 1992):   NIS agent testified that he saw a National Crime Information Center (NCIC) report showing criminal activity and conviction of, the accused’s father.  The report was hearsay, and based upon the evidence presented, did not qualify for admission under Mil. R. Evid. 803(6) or 803(8) (i.e., not shown to have been made at or near the time by a person with knowledge; the testifying agent was not the custodian of the record, nor did he show familiarity with the records-keeping system; the “rap” sheet was not a record or report of the activities of NCIC).

 

Lab Reports.

United States v. Schoolfield, 36 M.J. 545 (A.C.M.R. 1992), aff’d, 40 M.J. 132 (CMA 1994):  The accused alleged error in the admission of blood sample medical records (4 serology reports and a Western Blot test result) pursuant to MRE 803(6).  He argued the records were not kept in the ordinary course of business, no chain of custody was established, and that errors called into question the reliability of the records.  ACMR disagreed, finding no abuse of discretion by the military judge.  The medical director of WRAMC Institute of Research was qualified to testify as to the record keeping system and maintenance of records.
Lab Reports and Chain of Custody documents are admissible.  United States v. Vietor, 10 M.J. 69 (C.M.A. 1980); United States v. Robinson, 14 M.J. 903 (N.M.C.M.R. 1982).  Admission under the rule does not preclude the defense from calling the lab technicians to attack the report.
United States v. Maxwell, 38 M.J. 148 (C.M.A. 1993), cert. denied sub nom. Leiker v. United States, 114 S. Ct. 1056 (1994):  For admission of fungible evidence there must be a show of continuous custody which preserves evidence in an unaltered state.  Test results performed on fungible substances require chain of custody on which to predicate admission of lab analysis. The chain of custody evidence must be adequate, not infallible.  Thus, where chain is incomplete, other direct or circumstantial evidence may “bridge the gap,” as long as the court is satisfied that in reasonable probability the evidence has not been altered in any material respect.
United States v. Walker, 38 M.J. 678 (A.F.C.M.R. 1993):  Court of Review rejects argument that state of Florida criminal laboratory report was hearsay and without proper authentication because the Government failed to provide evidence of business procedures of the lab or that the report was kept in the ordinary course of the lab’s business.  Mil. R. Evid. 803(6) requires evidence sufficient to establish the trustworthiness of the document and to prove that it was prepared in the normal course of business.  This trustworthiness may be established by circumstantial evidence, such as the testimony of the AFOSI evidence custodian, as was done here.
United States v. Pinkston, 32 M.J. 555 (A.C.M.R. 1991).  Lab report properly admitted as business record where local evidence custodian testified about: (1) mailing procedures; (2) the chain of custody document; (3) how the lab report was received in the mail; and (4) his responsibility for maintaining the documents in the ordinary course of business and for identifying authenticating signatures.  Defense, however, can always challenge the report and request the chemist’s presence.

Computer Phone Records.  United States v. Casey, 45 M.J. 623 (N.M. Ct. Crim. App. 1996).  Computer system does not have to be foolproof, or even the best available, to produce records of adequate reliability.

Public Records and Reports.  Mil. R. Evid. 803(8).

(8)  Public records and reports.  Records, reports, statements, or data compilations, in any form, of public office or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other personnel acting in a law enforcement capacity, or  (C) against the government, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.  Notwithstanding (B), the following are admissible under this paragraph as a record of a fact or event 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:  enlistment papers, physical examination papers, outline figure and fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, records of court-martial convictions, logs, unit personnel diaries, individual equipment records, guard reports, daily strength records of prisoners, and rosters of prisoners.

Permits introduction of evidence from public office or agency where the data and source of information are indicative of trustworthiness and set forth (a) the activities of the office; or (b) matters observed pursuant to a duty imposed by law; or (c) (against the Government) factual findings resulting from an investigation made pursuant to authority granted by law.

Presumption of regularity.  Substantial compliance with regulation is sufficient.  Irregularities material to the execution preclude admissibility.  United States v. Anderson, 12 M.J. 527 (N.M.C.M.R. 1981).

Excludes matters observed by police or personnel acting in a law enforcement capacity, if offered by the Government.  Defense can admit police reports under Mil. R. Evid. 803(8)(c).  Purely ministerial recordings of police may be admissible.  United States v. Yeoman, 22 M.J. 762 (N.M.C.M.R. 1986), aff’d, 25 M.J. 1 (C.M.A. 1987) (the reporting of a filed complaint).

Contents of Learned Treatises.

Rule 803.  Hearsay exceptions; availability of declarant immaterial

The following are not excluded by the hearsay rule, even though  the declarant is available as a witness:

(18)   Learned treatises.  To the extent called to the attention of an expert where established as reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.

Main requirement for using the exception, whether on direct or cross-examination, is the establishment of the treatise, periodical, or pamphlet as reliable authority.  See generally David F. Binder, Hearsay Handbook, ch. 7 19.01 at 337 (3d ed. 1991).

The proponent of the evidence accomplishes this task either by obtaining an admission from an expert witness concerning the reliability or authority of the statement.  The provision concerning calling the treatise to the attention of the expert in cross-examination, or having the expert rely upon the treatise on direct examination “is designed to ensure that the materials are used only under the sponsorship of an expert who can assist the fact finder and explain how to apply the materials.”  2 C. McCormick, McCormick On Evidence ch. 34,  321 at 352 (4th ed. 1992)

Another method is through judicial notice.  “Given the requirements for judicial notice, Rule 201, and the nature and importance of the item to be authenticated, the likelihood of judicial notice being taken that a particular published authority other than the most commonly used treatises is reliable is not great.”  Michael H. Graham, Federal Practice and Procedure-Evidence 6769 at 714, note 4 (1992).

As is the case with the hearsay exception for recorded recollections, Mil. R. Evid. 803(18) provides that statements from the learned treatise are read into evidence; the learned treatise itself does not become an exhibit.

United States v. Jackson, 38 M.J. 106 (C.M.A. 1993), cert. denied sub nom. Leiker v. United States, 114 S. Ct. 1056 (1994):  During cross-examination of the government’s expert, defense counsel used statements from learned treatises with which the government expert partially agreed.  The military judge erred by instructing that the statements read by counsel from the learned treatises and the quality-control reports had been admitted solely for the purpose of testing the testimony of the government expert, and could not be considered for their truth.  Some of the writings were admissible as part of the expert’s testimony, and should have been considered for their truth.

Residual Hearsay Rules – The “Catchall”.  Mil. R. Evid. 803(24) and 804(b)(5).  Transferred to rule 807 which reads

807.  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 any 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.

The proponent must demonstrate “equivalent circumstantial guarantees of trustworthiness”;

Inherent Reliability.  Idaho v. Wright, 497 U.S. 805 (1990) (admissibility of child’s statement to doctor regarding abuse pursuant to residual hearsay rule requires a showing of indicia of reliability at the time statement made, not through corroborating evidence.   But see McGrath, infra
United States v. Morgan, 40 M.J. 405 (CMA 1994), cert. denied, 115 S. Ct. 907 (1995):  Military judge properly admitted sworn statement of rape complainant under residual exception.  The statement was made near to the time of the attack and was consistent with earlier excited utterances.

Establish the evidence is offered to prove a material fact in issue;

Show evidence offered is more probative of the point than any other evidence reasonably available.

All the prerequisites for use must be met, including the requirement that it be more probative than any other evidence on the point for which it is offered.  United States v. Pablo, 50 M.J. 658 (Army Ct. Crim. App. 1999), testimony of school counselor inadmissible hearsay because victim testified on the same issues and counselor’s testimony did not shed any new light on the issue.

Demonstrate that admission fosters fairness in the administration of justice; and

Provide notice of intended use.

United States v. Giambra, 38 M.J. 240 (C.M.A. 1993):  Before trial,  accused’s wife told CID he had said he did not know why he had indecently assaulted and attempted to rape his stepdaughter, and that he had been in her bed more than once.  At trial, spouse recanted her statement.  The statement was admitted erroneously under MRE 803(24) since reliability and necessity of the statement were highly questionable.  Applying the test for prejudice from United States v. Weeks, 20 M.J. 22 (C.M.A. 1985) (Is Government case strong; is defense theory weak; is proffered testimony material; is there any substitute for the proffered evidence?), court concluded there was a fair risk of prejudice by the improper admission of the hearsay.

United States v. McGrath, 39 M.J. 158 (C.M.A.), cert. denied, 115 U.S. 420 (1994):  Where there is no issue of confrontation, the guarantees of trustworthiness necessary for admission of evidence under MRE  804(b)(5) or 803(24) may be proven by all relevant evidence at trial, not only  circumstances surrounding the making of the statement, as required by Idaho v. Wright, 497 U.S. 805 (1990).  United States v. Ureta, 44 M.J. 290 (1996) (videotaped statement satisfied 804(b)(5) and showed particularized guarantees of trustworthiness); United States v. Cabral, 43 M.J. 808 (A.F. Ct. Crim. App. 1995) (interviews should be videotaped in their entirety, not just selective portions).

United States v. Castle, 45 M.J. 379 (1996).  Circumstances surrounding taking of tape-recorded statement of three-year-old sexual abuse victim included: fear of accused, lack of suggestive questioning, lack of evidence that testimony was rehearsed and victim’s contradiction of interrogator on several occasions.

United States v. Pablo, 53 M.J. 356 (2000).   Accused convicted of child abuse.  At trial, the victim testified.  Government also introduced the testimony of a school counselor under the residual hearsay exception.  The CAAF said this was an abuse of discretion and reversed the conviction.

Common Hearsay Exceptions -Unavailability.

Rule 804.  Hearsay exceptions; declarant unavailable

(a)  Definitions of unavailability.  “Unavailability as a witness” includes situations in which the declarant-
(1)  is exempted by ruling of the military judge on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
(2)  persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the military judge to do so; or
(3)  testifies to a lack of memory of the subject matter of the declarant’s statement; or
(4)  is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5)  is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means; or
(6)  is unavailable within the meaning of Article 49(d)(2).

A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.

804(a)(1):  Claim of privilege (which cannot be remedied by grant of testimonial immunity).  United States v. Robinson, 16 M.J. 766 (A.C.M.R. 1983).

804(a)(4):  Death, Physical Inability, Mental Incapacity, or Intimidation.  United States v. Arruza, 26 M.J. 234 (C.M.A. 1988), cert. denied, 489 U.S. 1011 (1989) (child intimidated); United States v. Ferdinand, 29 M.J. 164 (C.M.A. 1989), cert. denied, 493 U.S. 1044 (1990) (A child victim may become unavailable if testifying would be too traumatic).   But see United States v. Harjak, 33 M.J. 577 (N.M.C.M.R. 1991) (notwithstanding judge’s empathetic concerns for child, unauthenticated medical reports detailing victim’s physical and psychological condition to demonstrate unavailability irrelevant as reports did not discuss her current condition).

804(a)(5): Absence.  Inability to locate or procure attendance or testimony through good faith, major efforts:  United States v. Hampton, 33 M.J. 21 (C.M.A. 1991).  The victim refused to return for the trial and the military judge had no means to compel the victim’s attendance.  She properly was determined to be unavailable under MRE  804(a)(5).  Under these circumstances, the pretrial deposition was admissible.

United States v. Dorgan, 39 M.J. 827 (A.C.M.R. 1994):  Military judge erred in denying motion necessary to produce demonstrably material witness necessary for defense of entrapment.  It was incumbent on judge to delay trial long enough for the Government to attempt to deliver subpoena and fees.  Absent such an effort, there was no legal basis for a finding of unavailability.

United States v. Baker, 33 M.J. 788 (A.F.C.M.R. 1991) (Government had information that a witness’s husband had said she was not willing to testify or travel.  No further efforts were undertaken to make the witness available.  The military judge abused his discretion in finding the witness unavailable under Mil. R. Evid. 804(a)(5), and using the witness’ deposition to corroborate the accused’s confession).

United States v. Clark, 35 M.J. 98 (C.M.A. 1992):  The accused’s wife and stepdaughter (victim) were not present at the time of the court-martial.  The accused knew their whereabouts but did not disclose the information to his defense counsel until the night before the first 39(a) session.  The next day, the defense counsel sought a continuance to permit a deposition or to secure her appearance at trial.  C.M.A. upheld the judge’s denial of the motion.  The accused’s affirmative refusal to cooperate made it impossible to secure the testimony of the witnesses, and was done solely to gain a tactical advantage.  Such misconduct waived evidentiary and constitutional objections to the subsequent determination of unavailability.

United States v. Green, 44 M.J. 631 (C.G.Ct.Crim.App. 1996).  One Coast Guard appellate judge says the military judge must first issue an order for the declarant to submit to a deposition before determining unavailability.

Former Testimony.

Rule 804(b)  Hearsay exceptions.  The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

(1)  Former testimony.  Testimony given as a witness at another  hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record.  This paragraph is subject to the limitations set forth in Articles 49 and 50.

The foundational requirements are:

The first hearing was a fair one;

The witness testified under oath at the first hearing;

The opponent was a party in the first hearing;

The opponent had an opportunity to develop the witness’ testimony;

The opponent had a motive to develop the witness’ testimony at the first hearing;

The witness is unavailable;

There is a verbatim transcript of the first hearing.

Despite wording of Mil. R. Evid. 804(b)(1), admissibility of Article 32 testimony under former testimony exception depends on opponent’s opportunity to cross-exam, not whether cross-examination actually occurred or the intent of the cross-examiner.  United States v. Connor, 27 M.J. 378 (C.M.A. 1989); United States v. Hubbard, 28 M.J. 27 (C.M.A.), cert. denied, 493 U.S. 847 (1989).

United States v. Austin, 35 M.J. 271 (C.M.A. 1992):  UCMJ art. 32 testimony was admitted under Mil. R. Evid. 801(d)(1)(A) and 804(b)(1).  After the testimony was read to the members, they were permitted to take it into deliberations, over defense objection.  Analogizing to a deposition, which is not taken into deliberations (See R.C.M. 702(a), Discussion), COMA concluded the verbatim Article 32 testimony was not an “exhibit” within the meaning of R.C.M. 921(b).  See also United States v. Montgomery, CM 9201238, (A.C.M.R. 28 July 1994)(per curiam) (unpub.), the A.C.M.R. applied a similar analysis to a verbatim transcript of a prior trial.

United States v. Ortiz, 35 M.J. 391 (C.M.A. 1992):  Service of one subpoena, and attempted service of another does not satisfy the requirement for the Government to exhaust every reasonable means to obtain the presence of victim and her mother at trial.  “Reasonable means include obtaining subpoenas and writs of attachment.”  If a person refuses to appear, a military judge should exercise contempt powers, if possible, or issue a warrant of attachment which orders production of the witness.   The failure to pursue these alternatives made the judge’s finding of unavailability improper.  Admission of the victim’s Article 32 testimony under 804(b)(1), and a videotaped interview was prejudicial error.

Statement Against Pecuniary, Proprietary, or Penal Interests.

Rule 804(b)(3)  Statement against interest.  A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true.  A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

The foundational requirements include:

The declarant is unavailable;

The declarant previously made a statement;

The declarant subjectively believed that the statement was contrary to his or her interest;

The interest was of a recognized type;

If the defense offers a statement which tends to expose the declarant to criminal liability, to exculpate the accused, there must be corroboration to show the statement is trustworthy.

Statements against interest, if offered to exculpate the accused, must be corroborated to clearly show the trustworthiness of the statement.  United States v. Perner, 14 M.J. 181 (C.M.A. 1982).
Williamson v, United States, 115 S. Ct. 2431 (1994), on remand, 47 F.3d 1090 (11th Cir. 1995).  Only those remarks within a confession which are self-inculpatory are covered by the rule, not neutral, collateral, or self-exculpatory statements, such as those implicating a co-defendant.
United States v. Jacobs, 44 M.J. 301 (1996). CAAF answers questions left unresolved in Williamson, holding that declarations against interest are firmly rooted hearsay exceptions and reliability, for purposes of Sixth Amendment confrontation clause, can be inferred without more.  However, in accordance with Williamson, each declaration within the overall statement must still be analyzed and only those portions which are truly self-inculpatory may be admitted.

New Rule, 804(b)(6) reads as follows:

Rule 804(b)(6) Forfeiture by wrongdoing.  A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Rule 805 and 806.  Hearsay within Hearsay: Attacking and Supporting Credibility of Declarant.

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule.  United States v. Little, 35 M.J. 644 (N.M.C.M.R. 1992).

When a hearsay statement, or a statement defined in rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.

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