U.S. v. Rhodes, 61 M.J. 445

First Principles: Constitutional Matters: Confrontation

1. admission of co-actor’s prior statement implicating the accused in drug offenses did not violate the accused’s Sixth Amendment right to confrontation where co-actor took the stand, testified, and was subject to cross-examination, notwithstanding the fact that the co-actor now professed to have no memory of the accused’s involvement in the offenses
2. the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish; the opportunity for cross-examination is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief; rather, it is sufficient that the accused has the opportunity to bring out such matters as the witness’s bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory; the weapons available to impugn the witness’s statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee
3. when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraint at all on the use of his prior testimonial statements

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. (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

Core Criminal Law Subjects: Evidence: Hearsay › Statement against interest

1. 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
2. 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

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. the admissibility of uncharged misconduct is governed by the three-part Reynolds test: (1) does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts; (2) what fact of consequence is made more or less probable by the existence of this evidence; and (3) is the probative value substantially outweighed by the danger of unfair prejudice; if any one of the three parts is not met, the evidence is not admissible
2. a change in a witness’s recollection is, by itself, insufficient to support an inference of wrongdoing by the party who benefited from the change
3. in this case, the military judge erred by allowing the government to present evidence concerning the accused’s meeting with his co-actor the day before that co-actor signed an affidavit claiming memory loss; this evidence provided the factfinders with important background information concerning the co-actor’s claimed memory loss; the fact that the meeting took place was an appropriate matter for the factfinders to consider; the meeting might have induced the co-actor to falsely claim loss of memory due to feelings of remorse over betraying a friend; but the military judge erred by admitting the evidence for the improper purpose of demonstrating consciousness of guilt rather than for the proper purpose of evaluating the truthfulness of the co-actor’s claim of memory loss; and where the government’s case was certainly not overwhelming and rested solely on the co-actor’s statement, the suggestion that the accused suborned perjury from the co-actor could have been crucial to the outcome; thus, the erroneous use of this evidence was prejudicial and not harmless

Core Criminal Law Subjects: Witnesses: Confrontation

1. admission of co-actor’s prior statement implicating the accused in drug offenses did not violate the accused’s Sixth Amendment right to confrontation where co-actor took the stand, testified, and was subject to cross-examination, notwithstanding the fact that the co-actor now professed to have no memory of the accused’s involvement in the offenses
2. the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish; the opportunity for cross-examination is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief; rather, it is sufficient that the accused has the opportunity to bring out such matters as the witness’s bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory; the weapons available to impugn the witness’s statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee
3. when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraint at all on the use of his prior testimonial statements

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where error is founded on a violation of MRE 404(b), the test for harmlessness is whether we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error; the defense must initially meet the threshold burden of showing that an error has occurred which is of such a character that its natural effect is to prejudice a litigant’s substantial rights; the burden then shifts to the government to persuade us that the error was harmless