U.S. v. Finch, 79 M.J. 389

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. where an evidentiary issue is complex and/or merits a written filing by a party, it is appropriate for a military judge to place on the record his or her reasoning behind the resolution of that issue
2. where a military judge places on the record his analysis and application of the law to the facts with respect to an evidentiary objection, deference by an appellate court to his ruling is clearly warranted; on the contrary, if a military judge fails to place his findings and analysis on the record, less deference will be accorded
3. a military judge mishandled issues surrounding the admissibility of a child witness’s videotaped interview under a hearsay objection, (1) where he did not put any findings of fact or particularized conclusions of law on the record and thus his decision merited little deference, and (2) where he did not include in the record any analysis of why he concluded the videotape was admissible as non-hearsay under MRE 801 (the hearsay rule), nor did he specify under which subsection of MRE 801 he believed the videotape to be admissible, instead simply stating that it was admissible under the rule
4. where there is an evidentiary objection, the proper course of action for a military judge is to review the proffered evidence before making an admissibility determination

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law
2. in this case, the military judge abused his discretion in admitting an entire videotaped interview of a child witness as a prior consistent statement under MRE 801(d)(1)(B) where (1) he failed to put any findings of fact or conclusions of law on the record, thereby forfeiting the deference his ruling typically would have been given, (2) he failed to review the video before admitting it, and (3) he admitted the entire video interview rather than limiting the evidence to those portions of the interview that actually contained prior consistent statements

Core Criminal Law Subjects: Evidence: Generally

1. the proponent of evidence has the burden of demonstrating that the evidence is admissible
2. where the language of a military rule of evidence is identical to a corresponding federal rule, the interpretation of the terms in the rule by other federal courts of appeals is instructive
3. where an evidentiary issue is complex and/or merits a written filing by a party, it is appropriate for a military judge to place on the record his or her reasoning behind the resolution of that issue
4. where there is an evidentiary objection, the proper course of action for a military judge is to review the proffered evidence before making an admissibility determination

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted; hearsay generally is not admissible in courts-martial
2. a military judge mishandled issues surrounding the admissibility of a child witness’s videotaped interview under a hearsay objection, (1) where he did not put any findings of fact or particularized conclusions of law on the record and thus his decision merited little deference, and (2) where he did not include in the record any analysis of why he concluded the videotape was admissible as non-hearsay under MRE 801 (the hearsay rule), nor did he specify under which subsection of MRE 801 he believed the videotape to be admissible, instead simply stating that it was admissible under the rule

Core Criminal Law Subjects: Evidence: Prior Consistent Statements

1. pursuant to the provisions of MRE 801(d)(1)(B), only those portions of a witness’s prior statement that are consistent with the witness’s courtroom testimony may be deemed admissible at trial
2. a prior consistent statements must serve one of the express purposes cited by MRE 801(d)(1)(B): it must either rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or it must rehabilitate the declarant’s credibility when attacked on another ground
3. MRE 801(d) provides that a statement is not hearsay if the declarant of the out-of-court statement testifies and is subject to cross-examination about the prior statement, and the statement is consistent with the declarant’s testimony and is offered (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground
4. the plain text of MRE 801(d)(1)(B)(ii) indicates that a prior consistent statement is admissible when it serves to rehabilitate the declarant’s credibility as a witness when attacked on another ground; the rule’s mention of another ground refers to one other than the grounds listed in MRE 801(d)(1)(B)(i): recent fabrication or an improper influence or motive in testifying; the rule itself does not specify what types of attacks a prior consistent statement under MRE 801(d)(1)(B)(ii) is admissible to rebut, but the Drafters’ Analysis to the MREs lists charges of inconsistency or faulty memory as two examples
5. prior consistent statements may be admitted for their value in rehabilitating a witness’s credibility that has been attacked and as substantive evidence for the truth of the matter asserted; the prior consistent statement rule does not allow impermissible bolstering of a witness; to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of MRE 403, and the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event
6. it is not the case that under MRE 801(d)(1)(B)(ii), all prior consistent statements that serve to rehabilitate a declarant’s credibility as a witness are automatically admissible following impeachment on any ground; rather, the military judge must make a determination that each prior consistent statement is relevant to rehabilitate the witness on one of the grounds cited in MRE 801(d)(1)
7. in sum, for a prior consistent statement to be admissible under MRE 801(d)(1)(B)(ii), it must satisfy the following: (1) the declarant of the out-of-court statement must testify, (2) the declarant must be subject to cross-examination about the prior statement, (3) the statement must be consistent with the declarant’s testimony, (4) the declarant’s credibility as a witness must have been attacked on another ground other than the ones listed in MRE 801(d)(1)(B)(i), and (5) the prior consistent statement must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked
8. the proponent of prior consistent statement evidence under MRE 801(d)(1)(B)(ii) bears the burden of articulating the relevancy link between the prior consistent statement and how it will rehabilitate the witness with respect to the particular type of impeachment that has occurred
9. in this case, the military judge abused his discretion in admitting an entire videotaped interview of a child witness as a prior consistent statement under MRE 801(d)(1)(B) where (1) he failed to put any findings of fact or conclusions of law on the record, thereby forfeiting the deference his ruling typically would have been given, (2) he failed to review the video before admitting it, and (3) he admitted the entire video interview rather than limiting the evidence to those portions of the interview that actually contained prior consistent statements
10. when a party moves to introduce a prior consistent statement under MRE 801(d)(1)(B), the statement must be generally consistent with the declarant’s testimony at trial to be admissible
11. to the extent a prior statement contains substantive information inconsistent with the declarant’s in-court testimony, those material inconsistent aspects of the statement are hearsay and are not admissible under MRE 801(d)(1)(B)
12. the party moving to introduce a prior statement has a duty to identify those portions of the statement that are consistent with the witness’s testimony, and then to demonstrate the relevancy link between the prior consistent statement and how it will rehabilitate the witness’s credibility
13. in this court-martial of an accused for the alleged sexual abuse and rape of his 11-year-old stepdaughter, a videotaped interview of the alleged victim was not admissible in its entirety as a prior consistent statement to rebut a claim of recent fabrication or to rehabilitate the alleged victim’s testimony; many portions of the videotaped interview were generally consistent with the alleged victim’s in-court testimony and admissible; in addition, many of the discrepancies between the alleged victim’s in-court testimony and her videotaped interview were relatively inconsequential and admissible; however, one statement by the alleged victim on the videotape was not consistent with anything she testified to at the court-martial – specifically where she explained that after she told her mother that the accused had sexually assaulted her, her mother began to require the accused to stay away from their home when the alleged victim invited her female friends to spend the night for a sleepover; because this statement tended to bolster the alleged victim’s credibility, and it pertained to an issue of central importance to the trial, i.e. whether the alleged victim’s account of the sexual assaults was truthful, this prior statement was flatly inadmissible under MRE 801(d)(1)(B)

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. the proponent of evidence has the burden of demonstrating that the evidence is admissible
2. the proponent of prior consistent statement evidence under MRE 801(d)(1)(B)(ii) bears the burden of articulating the relevancy link between the prior consistent statement and how it will rehabilitate the witness with respect to the particular type of impeachment that has occurred; this mandate does not require counsel to remove every single inconsistency in a statement, since a prior consistent statement need not be identical in every detail to the declarant’s testimony at trial; rather, the moving party must omit the inconsistent parts of the statement that pertain to facts of central importance to the trial
3. under the rule of completeness outlined in MRE 106, a party may seek to admit additional portions of a prior consistent statement on grounds of fairness

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Admission/suppression of evidence

1. when an appellate court finds that a military judge erred in allowing evidence to be admitted, the government bears the burden of demonstrating that the admission of that erroneous evidence was harmless

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when an appellate court finds that a military judge erred in allowing evidence to be admitted, the government bears the burden of demonstrating that the admission of that erroneous evidence was harmless
2. for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings
3. in assessing prejudice for preserved nonconstitutional evidentiary errors, an appellate 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
4. in this case, the error in admitting a portion of a prior consistent statement that tended to bolster the alleged victim’s credibility and that pertained to an issue of central importance was not prejudicial where this portion of the statement constituted a mere passing reference in a very lengthy video, the defense pointed to no instances in the course of the trial where the government sought to exploit this portion of the statement, this portion of the statement was at best imprecise, and this portion of the statement was admitted without defense objection

Trial Stages: Appeals: Scope of Review

1. where a military judge places on the record his analysis and application of the law to the facts with respect to an evidentiary objection, deference by an appellate court to his ruling is clearly warranted; on the contrary, if a military judge fails to place his findings and analysis on the record, less deference will be accorded

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

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law