CAAF will hear oral argument in the Army case of United States v. Finch, No. 19-0298/AR (CAAFlog case page), on Wednesday, December 4, 2019, after the argument in Easterly. The court granted review of a single issue:
Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B).
Specialist (E-4) Finch was convicted by a general court-martial, composed of a military judge alone, of violation of a general regulation, committing lewd acts upon a child, and three specifications of committing a sexual act upon a child, in violation of Articles 92 and 120b. He was sentenced to confinement for six years, reduction to E-1, and a dishonorable discharge.
Finch’s convictions largely hinged on the testimony of his stepdaughter – SH – who said that he sexually assaulted her on two occasions while they were camping. Her allegations were investigated by the Army Criminal Investigation Command (CID), and she gave CID a videotaped interview. That interview was admitted at trial, in its entirety, over defense objection, after the military judge ruled that it was a prior consistent statement under Mil. R. Evid. 801.
Military Rule of Evidence 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. If a witness testifies about something in court, the rule allows a consistent, prior (out-of-court) statement by that same witness to be admitted as proof of the truth of the things said on both occasions (as opposed to a more limited admissibility, such as merely to prove that a prior statement was made).
The rule has two parts: 801(d)(1)(B)(i) and (ii). The first part – 801(d)(1)(b)(i) – has long allowed a prior statement to be admitted as non-hearsay when the prior statement predates an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. CAAF has applied the first part on a number of occasions, including just last term in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page). That case also involved a prior statement by an alleged child victim of rape, and a majority of CAAF found that the statement was improperly admitted under Mil. R. Evid. 801(d)(1)(B)(i) because it was made after the alleged improper influence (by the child’s mother). Because the statement did not pre-date the influence, it was not admissible as a prior consistent statement.
The federal rule was amended in 2014 (discussed here) to add the second part: 801(d)(1)(B)(ii). That new subsection makes any prior consistent statements of a witness admissible as non-hearsay so long as the prior statement is otherwise admissible for rehabilitation. The amendment was incorporated into the MCM in 2016 (noted here).
In Finch, the military judge did not state (and the parties at trial seemingly did not argue over) which part of Mil. R. Evid. 801(d)(1)(B) applied to AH’s videotaped interview with CID. Reviewing the military judge’s ruling on appeal, a three-judge panel of the Army CCA found that the interview was admissible under both parts of the rule. In a published decision that includes a lengthy review of the requirements for admission of evidence under both parts of the rule, the CCA first held that the interview was admissible under 801(d)(1)(B)(i):
As the defense theory of the case was that AH had fabricated the claim of sexual assault, this line of attack clearly implied that AH had fabricated new facts after the CID interview.
Accordingly, we conclude that the defense cross-examination of AH opened the door for the government to introduce prior consistent statements to rebut the charge of recent fabrication.
United States v. Finch, 78 M.J. 781, 790 (A. Ct. Crim. App. 2019) (link to slip op.). Then it held that the statement was also admissible under 801(d)(1)(B)(ii):
the defense, at several instances, impeached AH’s testimony as being inconsistent with what she had told Agent JB from CID. . .
The net effect of this cross examination was to attack AH’s credibility by claiming that her testimony was materially different than what she had told Agent JB during an official interview. This attack allowed the government to rehabilitate AH’s credibility under the analysis in Adams and Part (ii) of Mil. R. Evid. 801(d)(1)(B).
Id. at 790-791.
Both of those holdings are raised by the granted issue, but either one of them would allow CAAF to affirm the CCA’s decision and Finch’s convictions.
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