Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Many things aren’t hearsay (such as an out-of-court statement offered to show only its effect on the listener), and there are many exceptions to the hearsay rule that permit admission of a hearsay statement under various situations.

Two interesting grants from CAAF last week involve the hearsay rule.

First, in the Air Force case of United States v. Bowen, CAAF specified an issue involving a statement admitted as an excited utterance:

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. See M.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

Briefs will be filed under Rule 25.

An excited utterance is hearsay that is admissible because it is “relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Mil. R. Evid. 803(2). The Air Force CCA’s opinion in Bowen is available here and reveals that law enforcement responded to reports of screaming and discovered Bowen’s wife unconscious in the bathtub, and that she was only partially conscious when she was questioned. The military judge considered the circumstances and concluded that the head nod was admissible as an excited utterance, and the AFCCA affirmed that ruling.

Next, in the Army case of United States v. Swift, CAAF granted review of two issues and specified a third:

No. 16-0407/AR. U.S. v. Justin P. Swift. CCA 20100196. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues raised by Appellant:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

And the following issue specified by the Court:

III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. It’s hard to clearly identify the uncharged misconduct at issue, but the CCA focuses on the military judge’s ruling that permitted a teacher to testify about an out-of-court statement that the child made to her years earlier. The military judge introduced the statement as “victim’s outcry evidence,” and the CCA rightly finds that this ruling was error because there is no such exception to the hearsay rule (though there used to be; see ¶ 142(c), MCM (1969) (available here)). However, the CCA concludes that the statement was admissible for a non-hearsay purpose:

[W]e conclude, first, that the military judge inappropriately applied the outdated “victim outcry” principle. Nonetheless, we agree that a non-hearsay basis exists to allow the admission of the statement – namely, effect-on-the-listener. KS’s out-of-court statement is not barred by Mil. R. Evid. 802 because it was not offered for the truth of the matter asserted. Despite the military judge’s ruling on the out-of-date notion of “outcry doctrine,” the trial counsel specifically offered the victim’s statement as “effect on the listener” and as a “prior consistent statement.” The statement was properly offered to show why Ms. A contacted CPS and how the investigation ensued.

United States v. Swift, No. 20100196, slip op. at 4-5 (A. Ct. Crim. App. Jan. 21, 2016) (emphasis). This conclusion is deeply problematic for at least three reasons. First, there’s no indication that the members were instructed about any limitation on the use of the statement the judge considered the statement for only a limited purpose, and the CCA can’t restrict its use post hoc. Second, the effect on the listener (that CPS was contacted) was not an issue at trial, and so the statement had no probative value (but a high prejudicial effect). Third, there’s no indication of any foundation for admission of a prior consistent statement (and a footnote acknowledges this).

Despite its butchery of the hearsay rule, the CCA concluded that the admission of the statement was harmless in part based on the appellant’s pretrial admissions. CAAF’s grant of review, however, directly challenges that conclusion.

7 Responses to “Two interesting CAAF grants involving the hearsay rule”

  1. Wade Faulkner says:

    Re: Swift – I’ve never understood why the government always seeks to elicit the circumstances surrounding how the allegation came out…absent the issue being raised by the defense (usually a delayed reporting issue).  What relevance is there to how someone became aware of the alleged offenses?
    And when pressed, trial counsel usually respond, as ACCA did, that it goes to effect on the listener that someone then notified law enforcement.  Who cares?  Such evidence rarely has anything to do with the offenses, but usually is offered just to bolster the complaining witness.

  2. Zachary D Spilman says:

    Such evidence rarely has anything to do with the offenses, but usually is offered just to bolster the complaining witness.

    Which is, of course, a Mil. R. Evid. 403 issue. And even if the effect on the listener is relevant to the charges, the military judge should give a carefully-worded limiting instruction at the time the out-of-court statement is elicited.

    Some of this is just confusion about the hearsay rule. But it also involves vestiges of the fresh complaint rule (the military judge’s ruling in this case about victim outcry, for example). That rule, however, existed at a time when sexual assault allegations functionally required independent corroboration:

    a conviction cannot be based upon uncorroborated testimony given by an alleged victim in a trial for a sexual offense or upon uncorroborated testimony given by an accomplice in a trial for any offense, if in either case the testimony is self-contradictory, uncertain, or improbable. 

    ¶ 153(a), MCM (1969) (available here)).

  3. Seamus says:

    The Swift retrial wasn’t a members case.  It was judge alone.

  4. Zachary D Spilman says:

    Right Seamus. Thanks. The first trial was with members. 

    That, however, makes the judge’s application of the victim outcry principle even more problematic.

  5. Seamus says:

    Agreed. Keep in mind that there is a written statement by the Accused confessing to the allegations in this case, and the victim testified, so the actual prejudice here is tempered. The more interesting part of the grant, in my opinion, is the court’s question regarding sufficiency of evidence in a case where there’s a confession and testimony from the victim. 

  6. Zachary D Spilman says:

    That’s why I wrote that CAAF’s review directly challenges the CCA’s harmlessness conclusion, Seamus. If the confession was improperly admitted then the hearsay is more problematic. 

  7. Seamus says:

    Yep. Agreed.