United States v. Marchesano, __ M.J. ___, No. ARMY 20060388 (A. Ct. Crim. App. Oct. 2, 2008), is yet another military child molestation case. And like many child molestation cases, it presents a number of hearsay issues. ACCA’s published opinion in Marchesano explores a seldom-seen Military Rule of Evidence: MRE 804(b)(6), which provides that a statement is not excluded by the hearsay rule if the declarant is unavailable as a witness and the declarant’s statement is “offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.”
In a case of first impression, ACCA sets out a four-part test that must be met for Rule 804(b)(6) to apply: “(1) the witness was unavailable through the actions of another; (2) the act of another was wrongful in procuring the unavailability of the witness; (3) the accused expressly or tacitly accepted the wrongful actions of another; and (4) the accused did so with the intent that the witness be unavailable.” Marchesano, slip op. at 12. ACCA also holds that “preponderance of the evidence is the proper standard of proof at trial.”
ACCA goes on to hold that the military judge erroneously applied Rule 804(b)(6) to admit a hearsay statement she should have excluded. But ACCA ultimately concludes that the error was harmless and upholds SGT Marchesano’s conviction and sentence.