U.S. v. Brown, 87 M.J. 27

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion in admitting prior consistent statements under the exception to the hearsay rule in MRE 801(d)(1)(B)(ii) (that is, a prior consistent statement used to rehabilitate the declarant's credibility as a witness), where the five element test for this exception was met

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. a basic rule of evidence is that hearsay is not admissible unless some exception applies; the definition of hearsay generally includes any statement that the declarant does not make while testifying at trial and that is offered to prove the truth of the matter asserted; the definition of hearsay, however, expressly excludes certain out-of-court statements under conditions specified in MRE 801(d)
2. (under MRE 801(d)(1)(B)(i)-(ii)), a witness's prior statement is not hearsay if the declarant testifies and is subject to cross-examination about a 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)
3. for a prior consistent statement to be admissible under MRE 801(d)(1)(B)(i) (that is, a prior consistent statement used 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), it must satisfy the following: (1) the declarant of the statement must testify and must be subject to cross-examination about the prior statement; (2) the statement must be consistent with the declarant's testimony; and (3) the statement must be offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying; in addition, there are two additional guiding principles governing the admission of such a prior consistent statement: (1) the prior statement, admitted as substantive evidence, must precede any motive to fabricate or improper influence that it is offered to rebut; and (2) where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut
4. for a prior consistent statement to be admissible under MRE 801(d)(1)(B)(ii) (that is, a prior consistent statement used to rehabilitate the declarant's credibility as a witness), 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; the proponent of the evidence 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
5. if a witness's testimony is attacked on only one ground, a prior consistent statement offered to rebut that challenge may be eligible for admission under either MRE 801(d)(1)(B)(i) or MRE 801(d)(1)(B)(ii), but not both, because the two subparagraphs address different possible grounds of attack.
6. if a witness's testimony will be attacked on more than one ground, in such circumstances, a prior consistent statement might be properly offered to rebut the recent fabrication attack under MRE 801(d)(1)(B)(i) and also properly offered to rebut the poor memory attack under MRE 801(d)(1)(B)(ii)
7. in this case, the military judge did not abuse his discretion in admitting prior consistent statements under the exception to the hearsay rule in MRE 801(d)(1)(B)(ii) (that is, a prior consistent statement used to rehabilitate the declarant's credibility as a witness), where the five element test for this exception was met
8. in this case, the victim's testimony that she did not intentionally point a pistol at appellant before he stabbed her was consistent with her prior statements to CID, including her admission that her pistol might have passed by accused's body, in determining the admissibility of the victim's statements to CID under the hearsay exception for prior consistent statements used to rehabilitate credibility; a prior statement need only be for the most part consistent and in particular, be consistent with respect to facts of central importance to the trial; here, the issue of central importance at trial was whether victim did or did not intentionally point her pistol at accused, which was relevant to the question whether appellant acted in self-defense
9. in this case, the victim's testimony was attacked on inconsistency, a ground other than the ground of a motive to fabricate so that she could gain custody of her children; not only did defense counsel attack the victim's credibility based on inconsistency but told the members that they must assess this inconsistency by hearing all of her statements, including those to CID
10. an opposing party may not pick and choose among prior statements to create an appearance of conflict and then object when this appearance is rebutted by means of a fuller version of the same prior statements
11. a mere repetition of the same story is not relevant to whether that story, when told at trial, is true for purposes of determining whether a prior consistent statement is actually relevant to rehabilitate witness's credibility under the hearsay exception for prior consistent statements
12. in this case, the victim's prior statements to CID testimony that she did not point her pistol at the accused before he stabbed her were relevant to rehabilitate her credibility based on the defense's specific attack on her credibility, supporting the admission of such statements under hearsay exception for prior consistent statements used to rehabilitate credibility; the victim's statements to CID directly responded to defense counsel's attack that she lacked credibility because she made inconsistent statements, including statements to CID, and that her credibility could be assessed only by considering all her statements

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when reviewing a lower court's decision on a military judge's ruling, the CAAF typically has pierced through that intermediate level and examined the military judge's ruling and then decided whether the CCA was right or wrong in its examination of the military judge's ruling
2. the CAAF can affirm admission of evidence on a ground not cited by a military judge because the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason

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, and an abuse of discretion occurs if the military judge's 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; the abuse of discretion standard requires more than a mere difference of opinion; the challenged action must be arbitrary clearly unreasonable, or clearly erroneous
2. when reviewing a lower court's decision on a military judge's ruling, the CAAF typically has pierced through that intermediate level and examined the military judge's ruling and then decided whether the CCA was right or wrong in its examination of the military judge's ruling
3. the CAAF can affirm admission of evidence on a ground not cited by a military judge because the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason