U.S. v. Holt, 58 M.J. 227

Core Criminal Law Subjects: Evidence: Hearsay › Residual hearsay

1. 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
2. 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
3. the residual-hearsay exception is intended to apply only to highly reliable and necessary evidence
4. 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
5. a military judge’s decision to admit residual hearsay is entitled to considerable discretion on appellate review
6. 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
7. 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
8. 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
9. (statements made by a three- year-old to a police investigator about indecent acts committed by the accused had sufficient circumstantial guarantees of trustworthiness to be admissible under the residual hearsay exception where the child’s spontaneous act of pulling her panties aside and placing her finger by her vaginal area was an unusual event that supports a finding of reliability, where her statements were corroborated by admissible circumstantial evidence (i.e. statements made to her mother and a child clinical psychologist), and where her statements contained the degree of specificity normally associated with reliable statements (i.e. she was able to identify who touched her, where she was touched, and the manner in which the touching occurred). State of mind:

Core Criminal Law Subjects: Evidence: Hearsay › Residual hearsay

1. 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

Trial Stages: Sentence and Punishment: Evidence

1. 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
2. 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 this document as residual hearsay; accordingly, the court below abused its discretion by ignoring this foundational requirement
3. 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

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Article 66(c) limits the Courts of Criminal Appeals to a review of the facts, testimony, and evidence presented at the trial, and precludes the Court of Criminal Appeals from considering extra-record matters when making determinations of guilt, innocence, and sentence appropriateness
2. the Courts of Criminal Appeals are precluded from considering evidence excluded at trial in performing their appellate review function under Article 66(c)
3. rather than limiting itself to reviewing the propriety of the military judge’s trial determinations, the court below changed the evidentiary nature of certain prosecution exhibits by holding that the exhibits were admissible under specified exceptions to the hearsay rule; the exhibits were elevated to exhibits admitted for the truth of the matter asserted; the effect of this action was to enhance the aggravating nature of this sentencing evidence and to modify the qualitative evidentiary content of the record of trial; the truth of the matter asserted, which had been excluded at trial, became part of the record evidence; this was error; the Court of Criminal Appeals may not resurrect excluded evidence during appellate review under Article 66(c)
4. in reviewing guilt, evidence excluded in a trial forum cannot be considered on appeal to affirm guilt; the same limitation applies to the Court of Criminal Appeals when that court acts pursuant to the statutory mandate to affirm only the sentence or such part or amount of the sentence, as it finds correct in law and fact; the legal review of the sentence is limited to the facts, testimony, and evidence presented at trial; the court below erred when it altered the evidentiary quality of certain prosecution exhibits, and then proceeded to review the appellant’s sentence; where appellant did not receive a proper legal review under Article 66(c), UCMJ, the remedy is a remand to the Court of Criminal Appeals for a proper review

Trial Stages: Appeals: Remedies › Generally

1. where appellant did not receive a proper legal review under Article 66(c), UCMJ, the remedy is a remand to the Court of Criminal Appeals for a proper review

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. admissibility of evidence is reviewed for an abuse of discretion and that discretion is abused when evidence is admitted based upon an erroneous view of the law