Tuesday’s argument at NMCCA is in United States v. Sparks, No. 201000275.  Here’s the assignment of error:

The military judge abused his discretion when he allowed into evidence hearsay accusations allegedly communicated by Appellant’s four-year-old daughter to her estranged, maternal grandmother.  Contrary to the military judge’s ruling in limine and at trial, admission of the child’s supposed statement did not satisfy the requirements of Military Rule of Evidence 807.  The error was prejudicial.

19 Responses to “TWIMJ addendum”

  1. Anonymous says:

    If CCA bounces this case, there will never be an 807 ruling upheld.

  2. Anon says:

    This case sounds like it may be similar to US v Czachorowski, 66 MJ 432

  3. Anonymous says:

    CAAF bounced that one because the judge did not hear any evidence on the unavailability issue; he just took a proffer from the TC and made a finding the child was unavailable. That did not happen in Sparks.

  4. Cheap Seats says:

    Crawford??

  5. publius says:

    GP’s coming fast and furious down there. What gives?

  6. Ama Goste says:

    If by fast and furious, you mean 2 guilty pleas this year, then, yes, that’s the case. Do you think the govt would pick weak cases as its first handful to send to commissions?

  7. publius says:

    Who knows why the government does anything related to GTMO?

    By “fast and furious” I meant two GPs in approximately two months, after three GPs in seven plus years. While that does undeniably constitute an uptick, “fast and furious” may have been too much. So, I plead guilty to hyperbole. And to alliteration.

  8. anon says:

    That is incorrect, the facts don’t sustain the MJs conclusions in this case. However, 807 is meant to be the exception not the rule so the Court should look critically at any MJ that admits under this exception

  9. Anonymous says:

    Show us how you have any knowledge of the facts.

  10. Anonymous says:

    The floodgates are about to open….

  11. Anon says:

    Doesn’t appear to be a statement made to law enforcement or agents of the Gov in furtherance of investigation/prosecution so it would seem no Crawford issue.

  12. ksf says:

    Anon 12:13,

    Cheap Seats makes a good point. An exception to Crawford requires the statement not to be made in furtherance of a prosecution, AND the statement qualifies as a firmly rooted exception to hearsay, which I do not believe 807 qualifies, does it? The catch all cannot be a firmly rooted exception, for the love of Pete! Please tell me I am not wrong.

  13. John Harwood says:

    After nine years of court-martial litigation, it is my measured and reasoned opinion that residual hearsay is crap.

  14. Anonymous says:

    So when you have a guy confessing to molesting his 4 year old and the “residual hearsay” corroborates his confession, we should dismiss the charges?

  15. ksf says:

    Anon@0645 makes a good point. Is that what happened in this case? I know that in US v. Hotrum, the Court briefly touched on the Crawford issue, but allowed the hearsay statement made to medical personnel to corroborate the appellant’s alleged confession. Of course, ACCA found the statement non-testimonial and statements for purposes of medical treatment are an firmly rooted exception to hearsay. Is 807 a firmly rooted hearsay exception?

    The assignment of error doesn’t say anything about the appellant’s confession. Did Sparks confess?

  16. John Harwood says:

    Anon@0645, you’ve clearly misunderstood my comment. I don’t know the first dang thing about this case, and I didn’t say the charges should be dismissed. I said that residual hearsay is crap, and I stand by that.

    Whether or not residual hearsay should be admitted for the limited purpose of corroborating a confession isn’t a settled matter of law. It’s arguable that otherwise inadmissible evidence can be admitted if the only reason to admit it is to corroborate an otherwise uncorroborated confession. That’s a discusion, perhaps, for another thread.

    On another aside, the cases that come up on appeal and form the basis for appellate rulings to establish the left and right limits on any particular issue are almost always the result of guilty findings. It’s not helpful to say “but the guy molested a 4 year old.” They all molested a kid, or smoked some weed, or shoplifted from the BX, or went UA (is that proper usage of an 86 violation, Mr. Sullivan?), or confessed to a sex assault. The issue I’m commenting on is a question of LAW, not a question of FACT. I’m quite sure if this guy molested a little girl, he deserves every second he’s spending at Miramar or the DB. But that’s not my point. My point is … residual hearsay is crap. That’s all I’m saying.

  17. anon says:

    I read the ROT

  18. Anonymous says:

    You will lose your case, ADC.