U.S. v. Taylor, 61 M.J. 157

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. 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
2. although hearsay is generally inadmissible, MRE 803 and 804 contain a number of exceptions under which hearsay statements may be introduced

Core Criminal Law Subjects: Evidence: Hearsay › Public records and reports

1. 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
2. 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
3. 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
4. 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
5. 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
6. arrest warrants based upon the observations of persons acting in a law enforcement capacity are not admissible under MRE 803(8)(B)

Core Criminal Law Subjects: Evidence: Public Records

1. MRE 1005 provides that the contents of an official record may be proven by a copy if the copy is (1) certified as correct or attested to in accordance with MRE 902 (self-authentication), or (2) testified to be correct by a witness who has compared it with the original; the rule indicates a clear preference for these two methods, but also allows other evidence of the contents of a record to be given if the Government exercises reasonable diligence but is unable to obtain a copy that complies with the above requirements
2. a copy of a declaration of desertion message did not qualify as an admissible copy under MRE 1005 where it was not certified or attested to, and the Government’s foundation witness, did not testify that she compared it with the original document

Trial Stages: Appeals: Harmless / Prejudicial Error

1. for a nonconstitutional error, the Government must demonstrate that the error did not have a substantial influence on the findings; when evaluating the harm from the erroneous admission of Government evidence, this Court weighs (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
2. the erroneous admission of a declaration of desertion message and a declaration of return from desertion message was prejudicial error where those documents were the only evidence that appellant absented himself from his organization without authority, an element of the desertion charge; thus, the improperly admitted evidence had a substantial influence on the findings

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

1. this Court reviews a military judge’s ruling on evidentiary matters for an abuse of discretion