CAAF’s web site today added the daily journal from Tuesday, 20 February. CAAF granted review of five cases, two of which it summarily affirmed.
One of the remaining three granted cases was the continuing saga of United States v. Pflueger, 05-0139/MC, with its question for the ages about the difference between a remitted adjudged BCD and a disapproved BCD. (We previously discussed Pflueger here.)
The issue in United States v. Foerster, No. 07-0093/AR, involves Crawford v. Washington‘s application to an affidavit by Sergeant J.P. that was admitted under Military Rule of Evidence 803(6) and 807. This issue leaves me scratching my head for two reasons. First, the granted issue gives us no idea what the affidavit was about, so the true nature of this granted issue isn’t apparent. (Nor is the ACCA opinion available online.) Second, how can an exhibit, to use the granted issue’s words, be admitted “into evidence, under Mil. R. Evid. 903(6) and 807”? Military Rule of Evidence 807 is the residual exception that allows a statement to be admitted if it is “not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness.” It therefore appears to be metaphysically impossible for an exhibit to be admitted under both Rule 803(6) and 807, because if it is admitted under 803(6), it is definitionally excluded from 807. (A military judge could, of course, admit an exhibit under 803(6) or, in the alternative, 807, but can’t admit an exhibit under both.)
Now the grant referred to in this post’s title. In United States v. Wilson, No. 06-0870/AR, CAAF granted review of whether an honest and reasonable mistake of fact can constitute a defense to sodomy with a child under 16. (Wilson was a guilty plea case; the ACCA opinion does not appear to be online.) In addition to granting review in Wilson, CAAF’s order invited all of the appellate government and defense divisions to file amicus briefs under Rule 26.