U.S. v. Rankin, 64 M.J. 348

First Principles: Constitutional Matters: Confrontation

1. 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
2. the 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
3. (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)

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. 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
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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
8. (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)

Core Criminal Law Subjects: Evidence: Hearsay › Business entries

1. the military judge did not abuse his discretion in admitting service record exhibits under the business records exception to the hearsay rule to document the accused’s unauthorized absence offense, where a witness provided the foundational testimony in support of admissibility and the business records exception is firmly rooted

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even if the admission of the deserter/absentee arrest warrant, form DD-553, violated the Confrontation Clause because it was testimonial hearsay, the error was harmless beyond a reasonable doubt, where any information contained in it that was relevant to the elements of the offense of unauthorized absence was cumulative with the same type of information contained in the other exhibits that were not testimonial evidence

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

1. the question of whether documents offered at trial as records of regularly conducted activity under MRE 803(6) and as public records under MRE 803(8) were inadmissible hearsay is a question of law that an appellate court reviews de novo