U.S. v. Henry, 81 M.J. 91

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. MRE 602 requires that a witness must have personal knowledge in order to testify; when it comes to personal knowledge, the military judge’s role is to determine whether there is sufficient evidence for a reasonable court member to find that declarant had personal knowledge of his declaration; this is not a high bar
2. with respect to the excited utterance exception to the hearsay rule, the members must first determine whether a declarant had personal knowledge of what the declarant stated; a military judge’s analysis on this point is confined to whether a reasonable member could find that the declarant had personal knowledge; second, the members must determine what weight to give hearsay statements, and how to interpret them; a military judge oversteps when he or she searches for alternative theories and forces the government to prove to him or her what weight to give hearsay statements
3. with respect to the excited utterance exception to the hearsay rule, the military judge should focused his analysis on whether the government had shown by a preponderance of the evidence that: (a) the declarants were excited; (b) the alleged event was startling; and (c) whether, if the event had happened, the declarant could have still been under the excitement of the event; no further corroboration of the startling event is required, and it is inappropriate for the military judge to look for alternate theories of what could have prompted the excited statements

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge abused his discretion by excluding the excited utterances of appellant’s son and wife where he evidenced a grudging view of the excited utterance exception and raised the standard to an impermissibly high level by requiring proof of personal knowledge and considering each statement in isolation

Core Criminal Law Subjects: Evidence: Generally

1. MRE 602 requires that a witness must have personal knowledge in order to testify

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. MRE 803(2) (excited utterance exception), in contrast to MRE 803(1) (present sense impression exception), does not contain a corroboration requirement

Core Criminal Law Subjects: Evidence: Hearsay › Excited utterances

1. hearsay declarants are witnesses and must have personal knowledge in order for their statements to be admissible; in the case of a hearsay declarant, the personal knowledge does not need to be conclusively established before the testimony is admitted; rather, it is enough, if the declarant so far as appears has had an opportunity to observe the fact declared; when it comes to personal knowledge, the military judge’s role is to determine whether there is sufficient evidence for a reasonable court member to find that declarant had personal knowledge of his declaration; this is not a high bar
2. a statement relating to a startling event or condition, made while the declarant was under the stress of excitement caused by the event or condition, is admissible as an exception to the general prohibition on hearsay; the implicit premise of the exception is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of a lack of opportunity to fabricate
3. for a statement to qualify as an excited utterance: (1) the statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation; (2) the event prompting the utterance must be startling; and (3) the declarant must be under the stress of excitement caused by the event; relevant to the third prong of the inquiry as to whether a statement qualifies as an excited utterance are the physical and mental condition of the declarant and the lapse of time between the startling event and the statement; however, it is the totality of the circumstances, not simply the length of time that has passed between the event and the statement, that determines whether a hearsay statement was an excited utterance; further, MRE 803(2) (excited utterance exception) does not require corroboration—the declarant’s statement is sufficient to prove the existence of the startling event
4. the proponent of the excited utterance has the burden to show by a preponderance of the evidence that each element of the excited utterance exception to the hearsay rule is met
5. with respect to the excited utterance exception to the hearsay rule, the members must first determine whether a declarant had personal knowledge of what the declarant stated; a military judge’s analysis on this point is confined to whether a reasonable member could find that the declarant had personal knowledge; second, the members must determine what weight to give hearsay statements, and how to interpret them; a military judge oversteps when he or she searches for alternative theories and forces the government to prove to him or her what weight to give hearsay statements
6. the statements of appellant’s son to appellant’s neighbor (“He’s beating my mom. He’s beating my mom.” and “You better not hit her again.”) qualified as excited utterance exceptions to the hearsay rule where the statements were both excited and not the product of reflection, the alleged event that prompted the statements was startling, and appellant’s son was still under the excitement of the startling event when he made his statements
7. the statement of appellant’s wife to appellant’s neighbor (“He hit me. He hit me.”) and her statement to a 911 operator (that her husband had “been beating me for the last couple of hours”) qualified as excited utterance exceptions to the hearsay rule where the statements were both excited and not the product of deliberation, the alleged event that prompted the statements was startling, and appellant’s wife was still under the excitement of the startling event when she made her statements with respect to the excited utterance exception to the hearsay rule, there is not a relevant distinction between a declarant being “scared” or being “excited;” the term “excited” means “emotionally aroused; stirred;” the term “scared” means a “condition or sensation of sudden fear” or a “general state of alarm;” clearly, being scared is simply a heightened state of excitement).

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

1. the proponent of the excited utterance has the burden to show by a preponderance of the evidence that each element of the excited utterance exception to the hearsay rule is met

Core Criminal Law Subjects: Motions, Generally: Pretrial › Generally

1. RCM 905(d) provides that where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record; it is those findings that provide appellate courts the ability to review the military judge’s rulings; the fact that there was other evidence available to the military judge to support his ruling does not mean that he considered it or found it credible unless he says so in his essential findings

Core Criminal Law Subjects: Motions, Generally: Merits

1. RCM 905(d) provides that where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record; it is those findings that provide appellate courts the ability to review the military judge’s rulings; the fact that there was other evidence available to the military judge to support his ruling does not mean that he considered it or found it credible unless he says so in his essential findings

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial

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

1. an appellate court reviews a military judge’s ruling admitting or excluding an excited utterance for an abuse of discretion and will only reverse if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law