Argument Preview: Considering whether a prior statement was admissible under either part of Mil. R. Evid. 801(d)(1)(B), in United States v. Finch, No. 19-0298/AR
CAAF will hear oral argument in the Army case of United States v. Finch, No. 19-0298/AR (CAAFlog case page), on Wednesday, December 4, 2019, after the argument in Easterly. The court granted review of a single issue:
Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B).
Specialist (E-4) Finch was convicted by a general court-martial, composed of a military judge alone, of violation of a general regulation, committing lewd acts upon a child, and three specifications of committing a sexual act upon a child, in violation of Articles 92 and 120b. He was sentenced to confinement for six years, reduction to E-1, and a dishonorable discharge.
Finch’s convictions largely hinged on the testimony of his stepdaughter – SH – who said that he sexually assaulted her on two occasions while they were camping. Her allegations were investigated by the Army Criminal Investigation Command (CID), and she gave CID a videotaped interview. That interview was admitted at trial, in its entirety, over defense objection, after the military judge ruled that it was a prior consistent statement under Mil. R. Evid. 801.
Military Rule of Evidence 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. If a witness testifies about something in court, the rule allows a consistent, prior (out-of-court) statement by that same witness to be admitted as proof of the truth of the things said on both occasions (as opposed to a more limited admissibility, such as merely to prove that a prior statement was made).
The rule has two parts: 801(d)(1)(B)(i) and (ii). The first part – 801(d)(1)(b)(i) – has long allowed a prior statement to be admitted as non-hearsay when the prior statement predates an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. CAAF has applied the first part on a number of occasions, including just last term in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page). That case also involved a prior statement by an alleged child victim of rape, and a majority of CAAF found that the statement was improperly admitted under Mil. R. Evid. 801(d)(1)(B)(i) because it was made after the alleged improper influence (by the child’s mother). Because the statement did not pre-date the influence, it was not admissible as a prior consistent statement.
The federal rule was amended in 2014 (discussed here) to add the second part: 801(d)(1)(B)(ii). That new subsection makes any prior consistent statements of a witness admissible as non-hearsay so long as the prior statement is otherwise admissible for rehabilitation. The amendment was incorporated into the MCM in 2016 (noted here).
In Finch, the military judge did not state (and the parties at trial seemingly did not argue over) which part of Mil. R. Evid. 801(d)(1)(B) applied to AH’s videotaped interview with CID. Reviewing the military judge’s ruling on appeal, a three-judge panel of the Army CCA found that the interview was admissible under both parts of the rule. In a published decision that includes a lengthy review of the requirements for admission of evidence under both parts of the rule, the CCA first held that the interview was admissible under 801(d)(1)(B)(i):
As the defense theory of the case was that AH had fabricated the claim of sexual assault, this line of attack clearly implied that AH had fabricated new facts after the CID interview.
Accordingly, we conclude that the defense cross-examination of AH opened the door for the government to introduce prior consistent statements to rebut the charge of recent fabrication.
United States v. Finch, 78 M.J. 781, 790 (A. Ct. Crim. App. 2019) (link to slip op.). Then it held that the statement was also admissible under 801(d)(1)(B)(ii):
the defense, at several instances, impeached AH’s testimony as being inconsistent with what she had told Agent JB from CID. . .
The net effect of this cross examination was to attack AH’s credibility by claiming that her testimony was materially different than what she had told Agent JB during an official interview. This attack allowed the government to rehabilitate AH’s credibility under the analysis in Adams and Part (ii) of Mil. R. Evid. 801(d)(1)(B).
Id. at 790-791.
Both of those holdings are raised by the granted issue, but either one of them would allow CAAF to affirm the CCA’s decision and Finch’s convictions.
Finch’s brief begins with Mil. R. Evid. 801(d)(1)(B)(i), under which the videotaped interview is admissible only “to rebut an express or implied charge that the AH recently fabricated [her allegation] or acted from a recent improper influence or motive in so testifying.” Finch’s brief “acknowledges that there may have been multiple motivations for making a false allegation,” but insists that “it has always been the defense’s contention that these motivations all arose before AH ever gave this interview to CID.” App. Br. at 9. Because of that, Finch asserts that the videotaped interview did not pre-date the claimed improper motivation for AH’s testimony and so it was inadmissible under the first part of Mil. R. Evid. 801(d)(1)(B).
The Government Division responds by claiming that Finch’s defense alleged a newer improper motive at trial:
defense counsel’s questioning clearly attacked AH’s testimony on the basis that it was given not for its truth, but for her then-existing, self-interested motivation. Because in at least one explicit instance defense counsel charged AH with an additional improper motive, currently held while on the witness stand, the government was legally permitted to offer Pros. Ex. 3 to rebut that particular charge. . . .
. . . A fair reading of AH’s cross-examination suggests at least three charges of different improper motivations: (i) AH did not like SF; (ii) AH did not want to live with SF and appellant; and (iii) AH wanted to live with her friend “right now” and was willing to run away from home and lie under oath in order to achieve that desire.
Gov’t Div. Br. at 19-20 (citations omitted). The Army CCA agreed with that argument, concluding that “the questions (and answers) elicited by the defense implied that AH’s testimony in court was influenced by her present desire to no longer live with her parents.” 78 M.J. at 791. Finch, however, argues to CAAF that:
The defense contention is that AH always wanted to get Appellant out of the house, and that her present desire at trial was no different from her desire at the time she made the initial allegation. . . . The defense’s contention is that AH has always been biased, and nothing elicited by the defense suggested that there was any new motive.
App. Br. at 11.
Finch’s brief then turns to Mil. R. Evid. 801(d)(1)(B)(ii), under which the videotaped interview is admissible “to rehabilitate [AH]’s credibility as a witness when attacked on another ground.” Finch asserts that:
[W]hether [AH’s] in-court testimony about the assault was “broadly consistent” with her interview with CID is irrelevant because, other than those two specific details, the defense did not, in fact, imply that AH’s testimony about the assault was inconsistent with what she told CID. If it is true that for a prior consistent statement to be rehabilitative it must “address the manner in which the witness’ credibility was attacked,” 78 M.J. at 787, it is not enough to say that because the defense asked AH about the interview the entire interview comes in. The “manner” in which AH’s credibility was attacked was not by eliciting what AH actually did say to CID, but by attacking what she did not say. The video is simply not rehabilitative of that.
App. Br. at 15. In other words, Finch’s argument is that his defense counsel attacked AH’s credibility on the basis of differences between what she told CID and what she testified to in court, and that the statement to CID did not rehabilitate AH because it did not resolve those differences.
The Government Division, however, sees a broader attack by the defense:
During cross-examination, defense counsel lodged attacks on multiple fronts, including impeaching AH’s credibility, her memory, and confronting her with inconsistencies and omissions between her trial testimony and what she told SA JB. (JA 116–24). Defense counsel was able to, and did, cross-examine AH about the video. Indeed, defense counsel mentioned the video multiple times when confronting AH with alleged inconsistencies and omissions. (JA 116–24). By attacking AH’s credibility on other grounds, defense counsel opened the door to the admission of her CID interview.
Gov’t Div. Br. at 26. Furthermore, the Division’s brief acknowledges an important limitation on the ability to admit prior statements under the new, Mil. R. Evid. 801(d)(1)(B)(ii):
The government does not contend, nor did the Army Court hold, that any kind of impeachment will automatically open the door to admission of prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(ii).
Gov’t Div. Br. at 26. Its brief also suggests that admission of AH’s videotaped interview was a somewhat-narrow rehabilitation after a wide-ranging attack on her credibility by the defense:
The strategy here is clear: defense counsel wanted the fact finder to consider the impeachment evidence and conclude AH was untruthful because she could not keep her stories straight and continued to fabricate new versions of the abuse. AH’s CID statement contains probative force beyond mere repetition because it rebuts this charge by demonstrating AH had in fact been largely consistent in how she described appellant’s sexual abuse. Admission of her CID statement, therefore, assisted the fact finder in determining “whether the impeaching statements really were inconsistent within the context of the interview, and if so, to what extent.” United States v. Harris, 761 F.2d 394, 400 (7th Cir. 1985).
Gov’t Div. Br. at 30.
The last part of Finch’s brief addresses prejudice. Arguing that the prosecution’s case was weak, Finch highlights inconsistencies in AH’s testimony and prior statements, her motive to fabricate, and the absence of other evidence of guilt. His brief also asserts that:
The government was permitted to bolster AH’s credibility with inadmissible hearsay. It is obvious that the government wanted to get AH off the witness stand as quickly as possible, then fill in the gaps in her testimony under the guise of a “prior consistent statement.”
App. Br. at 24. He concludes that “the video was inadmissible in its entirety, but was exceptionally strong evidence against Appellant. It cannot therefore be said that the error in admitting the video did not have a substantial influence on the findings.” App. Br. at 26.
The Government Division acknowledges that “the CID interview was helpful to rebut the defense attacks on AH’s credibility and memory,” Gov’t Div. Br. at 33, but it claims that “compared to AH’s actual testimony, the video was not as material and of lower quality.” Gov’t Div. Br. at 34. Ultimately, however, the Government Division’s strongest argument is that Finch was tried by a military judge alone who stated that “he would ‘give all evidence the weight it – that it deserves.'” Gov’t Div. Br. at 35 (quoting record).
Unfortunately, because that the military judge admitted the videotaped interview without identifying which part of the rule applied, it seems like the parties at trial did little to address the weight the interview deserved.