Cases involving Military Rule of Evidence 807 – the residual exception to the hearsay rule – are relatively rare. CAAF last considered the issue in United States v. Czachorowski, 66 M.J. 432 (C.A.A.F. 2008) (discussed here), and it’s been almost four years since the last time we noted a CCA case involving the rule (see this post discussing United States v. Sparks, No. 201000275 (N-M. Ct. Crim. App. Feb. 15, 2011), rev. denied, __ M.J. __ (C.A.A.F. Jul. 27, 2011)).

However, last month the Air Force CCA considered the residual exception in an unpublished opinion in United States v. Betts, 38476 (A.F. Ct. Crim. App. Nov. 20, 2014) (link to slip op.). The court found that a military judge erroneously applied the exception to admit statements during the sentencing phase of a court-martial. However, the court found that this error was harmless because the case involved pleas of guilty and sentencing by a military judge alone, and the judge considered the hearsay for a limited purpose that was cumulative with other evidence.

The appellant was convicted in accordance with her pleas of guilty, by a general court-martial composed of a military judge alone, of wrongful use of heroin on divers occasions in violation of Article 112a. She was sentenced to confinement for five months, reduction to E-1, a reprimand, and a bad-conduct discharge.

The appellant has a son with special needs who was cared for by a nurse. The nurse was called as a witness during the sentencing phase, and her testimony included the following statements made by the appellant’s son (who was three years old at the time):

I was going into the kitchen to get him something to eat or drink and he said, “We went to Jordan’s.” And I said to him, “Do you mean Jordan’s Furniture store?” He was like, “No, we went to Jordan’s house.” And I said, “Oh, what did you do there? Did you play video games or something?” He was like, “No, we get medicine and needles.” Then he said, “Mommy takes a needle and puts it in her arm,” and made a motion towards the left bend in his arm.

Slip op. at 2. The Defense objected to these statements on hearsay and Confrontation grounds. The Government responded that the statements were admissible under the residual exception to the hearsay rule. The military judge then partially admitted the statements, with the following verbal ruling:

The court is also going to consider that for the matter which could be a proper matter in aggravation that drug use was used in the vicinity of a three-year[-]old child. But as for what the child specifically told her about his information, as that information is a specific fact, the court is not going to consider that specific fact as the truth. But it is going to consider it as evidence that the child was in the vicinity of the accused when the accused used heroin.

Slip op. at 3. The CCA’s analysis begins with a two-pronged rejection of the Confrontation Clause objection:

To the extent that the appellant asserts that the admission of such statements violated the Confrontation Clause, we disagree. Our superior court has held that “the Sixth Amendment’s Confrontation Clause does not apply to this presentencing portion of a non-capital court-martial.” United States v. McDonald, 55 M.J. 173, 174 (C.A.A.F. 2001). Additionally, we find the Confrontation Clause was not violated because the statements offered were the unsolicited, spontaneous utterances of a three-year-old boy to his nurse. Given these facts, we find the statements were nontestimonial in nature, and therefore no Confrontation Clause concern is present.

Slip op. at 3. McDonald was decided before the Supreme Court’s seminal confrontation decision in Crawford v. Washington, 541 U.S. 36 (2004), but the CCA’s conclusion that the statements were non-testimonial due to their unsolicited and spontaneous nature appears to be dispositive of the confrontation objection even if the confrontation clause were held to apply during the sentencing phase of a court-martial.

The hearsay objection gets a closer analysis. The court begins by noting the three requirements for admission of evidence under M.R.E. 807:

(A) the statement is offered as evidence of a material fact;

(B) the statement is more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; and

(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Slip op. at 4 (quoting United States v. Czachorowski, 66 M.J. 432 (C.A.A.F. 2008) (footnote omitted) (quoting Mil. R. Evid. 807)) (formatting added).

The court finds that the child’s statement was evidence of a material fact (satisfying the first requirement for admission under M.R.E. 807) because the judge’s limited admission of the statement as evidence of “how it prompted the nurse to take action and the fact the child was in the vicinity of the accused when the accused used heroin” ensured that the statement “described circumstances directly relating to or resulting from the offenses of which the accused had been found guilty.” Slip op. at 5 (marks omitted).

But, the CCA finds that the second requirement was not met:

we find the military judge did not adequately determine the evidence was more probative on the point for which it was offered than other evidence which the Government could procure through reasonable efforts. Other than asking for the child’s age, the military judge did not assess for himself whether the child who made the statements was unavailable or otherwise beyond the Government’s ability to procure through reasonable efforts. In fact, the record indicates the child may have been available, as the Government provided notice to the defense that the child was a potential witness. In Czachorowski, our superior court explained that under Mil. R. Evid. 807(B)

[a] trial judge . . . cannot take it for granted that a declarant of any age is unavailable or forgetful, and then admit hearsay testimony under the residual exception instead. Absent personal observation or a hearing, some specific evidence of reasonable efforts to obtain other probative evidence is still required under M.R.E. 807(B).

66 M.J. at 436.

Slip op. at 5.

The CCA then concludes that the error was harmless because the appellant had already admitted (during the plea inquiry) that her son was exposed to her drug use and that he had said something to his nurse:

Although the statements of the child were detailed, the military judge expressly did not consider those details. Instead he limited his consideration of the child’s out-of-court statements to evidence that the child was “in the vicinity” of the appellant when she used heroin. This evidence was already before the court. During the providence inquiry, the appellant admitted she used heroin “quite a few times”; that she injected heroin into herself in her on-base home, where her husband, mother-in-law, and young son lived; and that she “guess[ed] [her] son had made a comment to [his nurse, ML,] about seeing [her] use heroin.” Consequently, in this military judge-alone trial, we find no possible prejudice to the appellant.

Slip op. at 5.

One Response to “The Air Force CCA finds harmless error in application of the residual exception to the hearsay rule”

  1. AF JAG says:

    @Zachary Spillman–I take your point that McDonald (C.A.A.F. 2002) was decided before Crawford, but I think that the analysis that the 6th Amendment Confrontation Clause right does not apply at presentencing proceedings in non-capital courts-martial still holds up given what seems like unanimous agreement on that principle from the federal circuit courts.
    The 5th Circuit did a good job summarizing the law in it’s 2007 decision in United States v. Fields where the Court ultimately held that while the 6th amendment confrontation clause did apply to capital sentencing proceedings, it emphatically did not apply to non-capital sentencing proceedings in the federal civilian system:  “And with regard to the confrontation right, caselaw definitively maintains the Williams [Williams v. New York, 337 U.S. 241 (1949)] principle in the noncapital context and establishes that the right does not apply at sentencing. In particular, the Confrontation Clause does not operate to bar the introduction of testimonial hearsay at noncapital sentencing.”  Fields, 483 F.3d 313, 332, and 332 n.20 (5th Cir. 2007) (emphasis added) (citing United States v. Tucker, 404 U.S. 443, 446–47 (1972); United States v. Witte, 515 U.S. 389, 397–98 (1995);  Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993); see also, e.g., United States v. Hall, 152 F.3d 381, 405 (1998), rev’d on other grounds 528 U.S. 304 (1999); United States v. Beydoun, 469 F.3d 102, 108 (5th Cir.2006); United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.1990) (reasoning that “[a] court may rely on uncorroborated hearsay testimony” at noncapital sentencing); United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005) (observing that the Confrontation Clause, and therefore Crawford, do not apply at sentencing); United States v. Luciano, 414 F.3d 174, 179 (1st Cir.2005) (explaining that “[n]othing in Crawford requires us to alter our previous conclusion that there is no Sixth Amendment Confrontation Clause right at sentencing”); United States v. Martinez, 413 F.3d 239, 243 (2d Cir.2005) (noting that “[n]either Crawford nor Booker … addressed the applicability of the right of confrontation to the sentencing context or the admissibility of hearsay testimony at sentencing proceedings,” and therefore “[t]hese cases … provide no basis to question prior Supreme Court decisions that expressly approved the consideration of out-of-court statements at sentencing”); United States v. Chau, 426 F.3d 1318 (11th Cir.2005) (confirming that “there is no precedent from this Court or from the Supreme Court establishing that the Confrontation Clause prohibits the admission of hearsay evidence at sentencing proceedings”).
    Of course, our hearsay prohibitions are applied by rule via R.C.M. 1001.  However, because they are rule based, the President could just as easily remove the hearsay limitations by rule and rely instead upon what the federal courts have called the “5th Amendment” confrontation approach where admissibility is limited only in general terms of “reliability” and reasonable opportunity for the accused to rebut adverse information presented at sentencing.