On Tuesday CAAF granted review in three cases.

Two involve the new Mil. R. Evid. 801(d)(1)(B)(ii), which is an issue the court is already considering in United States v. Finch, No. 19-0298/AR (CAAFlog case page). CAAF heard oral argument in Finch on December 4, 2019. During the oral argument, the Army Government Appellate Division largely conceded that the Army CCA correctly interpreted the new rule as not expanding the range of admissible statements beyond those that actually rehabilitate the witness on the specific point of impeachment (which have always been admissible, just not for their truth). The new cases are from the Navy and from the Army:

No. 20-0006/NA. U.S. v. Matthew D. Norwood. CCA 201800038. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING, OVER DEFENSE OBJECTION, THE ENTIRE VIDEO-RECORDED INTERVIEW OF THE COMPLAINING WITNESS UNDER MRE 801(d)(1)(B)(ii) AS A PRIOR CONSISTENT STATEMENT.

II. WHETHER THE GOVERNMENT TRIAL COUNSEL’S ARGUMENTS AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT WARRANTS RELIEF.

Briefs will be filed under Rule 25.

No. 20-0033/AR. U.S. v. Thomas Ayala. CCA 20170336. 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 granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING THE VICTIM’S PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) AND 801(d)(1)(B)(ii).

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA issued a published decision in Norwood (available here), that I noted in my post about CAAF’s grant in Finch. Norwood is like Finch in two significant aspects. First, the NMCCA reached the same basic decision about the scope of the new Mil. R. Evid. 801(d)(1)(B)(ii) in Norwood as the ACCA reached in Finch:

Only the second part of the amended rule is new and it does not change the admissibility of prior consistent statements used only to rehabilitate a witness’ credibility. It does, however, change what the statement can be used for once it is admitted into evidence. A prior consistent statement, not otherwise admissible under Mil. R. Evid. 801(d)(1)(B)(i), can now be used as substantive evidence as well as to rehabilitate the witness’ credibility.

United States v. Norwood, 79 M.J. 644, 655, slip op. at 4 (N-M Ct. Crim. App. 2019). Second, in both Norwood and Finch the CCAs concluded that the statements at issue were admissible under Mil. R. Evid. 801(d)(1)(B)(i) because they rebutted defense charges of recent fabrication. That makes the first granted issue in Norwood somewhat curious, as it is does not challenge the NMCCA’s conclusion that the prior statement “squarely falls under part (i) of the rule.” 79 M.J. at 656.

The NMCCA also found “isolated and brief” improper arguments that it concluded were harmless. 79 M.J. at 664-665.

The Army CCA’s opinion in Ayala is here. The CCA found portions of the prior consistent statement to be admissible under part (i) of the rule, and other portions admissible under part (ii).

CAAF’s the third grant is from the Air Force and involves probable cause:

No. 20-0019/AF. U.S. v. Jared D. Bavender. CCA 39390. 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 granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE LOCATED ON APPELLANT’S DIGITAL MEDIA.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The appellant admitted to looking at child pornography, and his admissions were used as the basis for a search authorization for his electronic media (where investigators discovered contraband child pornography). The defense moved to suppress the fruits of the search on the basis that the admissions didn’t actually provide probable cause because:

no information was included in the affidavit [supporting the request for the search authorization] about Appellant’s account of the settings, actions or poses of the children. Similarly, Appellant told the agents how he sought pictures of nude children by searching “nudist websites.” The pictures he found, so he claimed, did not depict minors engaged in sexual acts. Appellant denied looking at images on the Internet of children “actually having sex,” and maintained that the closest thing to a sexual image he saw online was a photo from a nudist website of a group of people standing naked and looking at the camera. One of those individuals was a teenage girl, and it was possible she was looking at a boy’s genitalia. The Defense relayed to the military judge that none of these facts were included in SA VL’s affidavit or provided to the magistrate, thereby rendering the search authorization inadequate.

United States v. Bavender, No. 39390, slip op. at 5 (A.F. Ct. Crim. App. Aug. 23, 2019). The military judge denied the motion on the basis that the appellant’s admissions provided a sufficient factual basis for probable cause, and the CCA affirmed.

5 Responses to “CAAF grants review in two additional cases involving prior consistent statements, and in a case involving probable cause”

  1. Abe Froman says:

    It would be nice to get some clarification on the left and right limits of this newer version of prior consistent statements. I believe it has been used liberally in a lot of cases. 

  2. Zachary D Spilman says:

    The law’s pretty clear, Abe Froman. The new rule merely:

    extends substantive effect to consistent statements that rebut other attacks on a witness – such as the charges of inconsistency or faulty memory. The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked.

    Analysis of Mil. R. Evid. 801(d)(1)(B)(ii), Appendix 22 at 61, Manual for Courts-Martial (2016 ed.) (emphasis added). See also Notes of Advisory Committee on 2014 amendments, Fed. R. Evid. 801.

    In other words – exactly as the NMCCA held in Norwood – the new rule doesn’t make admissible any statement that wasn’t admissible previously; it merely changes the way the statement may be used. What was once admissible only for rehabilitation, is now admissible for the truth.

    The real problem seems to be lack of objections at trial and lack of clarity in military judge’s rulings admitting prior consistent statements under the new rule.

  3. Zachary D Spilman says:

    A postscript, Abe Froman.

    I’m not a fan of the drafters’ analysis in the MCM (because it’s the product of an opaque and dubious process), and I shouldn’t have pointed to that alone. The Federal Advisory Committee Notes on the 2014 amendment (that created 801(d)(1)(B)(ii)), however, are far more reliable. They state:

    The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.

    (emphases added). This is also clear from the plain language of the rule. A prior statement is not hearsay when it:

    is consistent with the declarant’s testimony and is offered. . . to rehabilitate the declarant’s credibility as a witness when attacked on another ground

    Mil. R. Evid. 801(d)(1)(B)(ii) (emphasis added). The statement must, in fact, rehabilitate in order to satisfy the rule. And repetition is not rehabilitation, as “mere repeated telling of the same story is not relevant to whether that story, when told at trial, is true.” United States v. McCaskey, 30 M.J. 188, 192 (C.A.A.F. 1990) In other words:

    a prior consistent statement admitted under Part (ii) must be probative of some fact at issue. And repetition alone will not meet the offering party’s burden.

    Finch, 78 M.J. at 788.

  4. Tami a/k/a Princess Leia says:

    The biggest problem I’ve seen so far is that there is no parsing out between inconsistent and consistent subsets of statements, and there are so many different statements made by alleged victims, but there is no instruction as to what is consistent and what is inconsistent.

  5. Nathan Freeburg says:

    What Tami said.  And plenty of appellate litigation coming out of it as well….