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.

One Response to “ACCA analyzes Military Rule of Evidence 804(b)(6)”

  1. Dew_Process says:

    There are some anomalies in Marchesano that make it problematic and difficult to fathom. ACCA makes a big deal about the failure to honor the German Subpoena, but the opinion doesn’t disclose whether or not there was any Motion to Quash it or conversely, to enforce it.

    A subpoena is a “process” of a Court and a Court of one sovereign has no jurisdiction to issue a subpoena directing an appearance in a court of another sovereign. That’s for starters. But, if one assumes that hypothetically, there was a valid German subpoena, issued [presumably] at the Army’s request, then why isn’t it the Army who has “forfeited” its right, if they never sought judicial enforcement of the subpoena in the German Courts?

    The substantive issue as Dwight notes, deals with MRE 804(b)(6), and was [not surprisingly] given a far more restrictive application in Giles.

    CAAF is interested in Giles as they recently granted a motion for supplemental briefing on it, albeit in the context of should it apply against the government when they are responsible for a witnesses “unavailability.”

    But, the Court in Giles wasn’t dealing with the FRE’s, just California’s application of the forfeiture by wrongdoing principle. So, who knows how the “acquiesence” issue will play out, as Giles seems to require some affirmative conduct to trigger the rule.

    I hope Marchesano’s counsel drops in here and offers his thoughts…