U.S. v. Czachorowski, 66 M.J. 432

Military Justice Personnel: Military Judge: Discretion

1. the military judge abused his discretion when he admitted into evidence a child victim’s out-of-court statements under the residual hearsay exception of MRE 807, where the judge relied on the trial counsel’s bare, uncorroborated assertion that the victim was unavailable to testify and ignored the government’s burden to prove that reasonable efforts could not be made to bring the victim in to testify herself

Core Criminal Law Subjects: Evidence: Hearsay › Residual hearsay

1. although the proponent of out-of-court statements to be admitted under the residual hearsay exception of MRE 807 must give the adverse party advance notice of the statements in order to allow the adverse party to challenge the statements’ admission and substance, a formal notice requirement – that is, oral or written notification of the intended use of MRE 807 - is clearly absent from the rule, and the CAAF adopts a flexible approach to the notice requirement; in this regard, any advance notice applies to the statements, not to the means by which the proponent intends to seek admission of those statements; in this case, where the trial defense counsel admitted that he knew of the witness’s statements and trial counsel’s intention to admit them into evidence as excited utterances under MRE 803(2) long before trial, that satisfied the notice requirement of MRE 807
2. the residual hearsay exception embraced by MRE 807 permits, in rare circumstances, the introduction of hearsay testimony otherwise not covered by MRE 803 or MRE 804 where, given equivalent circumstantial guarantees of trustworthiness, the military judge determines that (1) the statement is offered as evidence of a material fact, (2) 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 (3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence; prong 2 balances the probativeness of available evidence, and requires the proponent of the evidence to show he could not obtain more probative evidence despite reasonable efforts; failure to meet that burden renders the evidence inadmissible
3. a trial counsel’s bare assertion of a declarant’s unavailability does not satisfy the government’s burden to prove the unavailability of other direct and more probative evidence on point to satisfy the residual hearsay exception of MRE 807; a trial judge cannot take it for granted that a declarant of any age is unavailable or forgetful, and then admit hearsay testimony under the residual exception instead; absent personal observation or a hearing, some specific evidence of reasonable efforts to obtain other probative evidence is still required under MRE 807
4. the military judge abused his discretion when he admitted into evidence a child victim’s out-of-court statements under the residual hearsay exception of MRE 807, where the judge relied on the trial counsel’s bare, uncorroborated assertion that the victim was unavailable to testify and ignored the government’s burden to prove that reasonable efforts could not be made to bring the victim in to testify herself

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in admitting into evidence a child victim’s out-of-court statements under the residual hearsay exception of MRE 807 materially prejudiced appellant’s substantial rights under Article 59(a), UCMJ, where appellant was convicted of indecent acts with that victim based, in large part, on that evidence

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

1. an appellate court reviews an evidentiary ruling with regard to the residual hearsay exception of MRE 807 for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo