CAAFlog » October 2019 Term » United States v. Finch

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Easterly, No. 19-0398/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Finch, No. 19-0298/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

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.

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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. Put differently, if a witness testifies about something in court, the rule allows a prior (out-of-court) statement by that same witness to be admitted to prove the thing asserted.

The rule has long allowed a prior statement to be admitted as non-hearsay when the prior statement predated an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. For example, just a few weeks ago in United States v. Frost, 79 M.J. __ (C.A.AF. Jul. 30, 2019) (CAAFlog case page), CAAF addressed the admission of a prior statement by an alleged child victim of rape. The statement was made to a psychotherapist, but a majority of CAAF found that the defense had alleged that the child was improperly influenced by her mother before the child talked to the psychotherapist. Accordingly, the statement was wrongly admitted.

But the federal rule was amended in 2014 to add a new sub-section: 801(d)(1)(B)(ii). The new subsection makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). Specifically, the new subsection states that a prior consistent statement is not hearsay when it is offered:

to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness; the Advisory Committee note on the amendment explains that:

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.

The amendment was incorporated into the MCM in 2016 (noted here).

The Army CCA addressed the change in a recent published decision in United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). Writing for a unanimous three-judge panel of the CCA, Judge Wolfe explained that the requirement that the prior statement be admitted to rehabilitate the declarant’s credibility is an important one:

Part (ii) requires rehabilitation of the credibility of a witness.

“Mere repeated telling of the same story is not relevant to whether that story, when told at trial, is true.” McCaskey, 30 M.J. at 192. A prior statement admitted under Mil R. Evid. 801(d)(1)(B)(ii) must rehabilitate the credibility of the witness in order to be admissible under the rule. The fact that a statement was repeated in the past, without more, is not very probative in rehabilitating the credibility of the witness’ in-court testimony.

In general, to be rehabilitative, a prior consistent statement must address the manner in which the witness’ credibility was attacked. In Pierre, the witness was impeached for omitting key facts in his interview notes. The implication was that the witness had either made up the key facts after the interview or had an inaccurate memory about what was said in the interview. 781 F.2d at 334. A formal report that contained the key facts, created shortly after the interview, tended to rebut both implications, and therefore rehabilitated the witness’ credibility.

. . .

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. McCaskey, 30 M.J. at 192; see also Adams, 63 M.J. at 697 n.5.

78 M.J. at 787. Then, applying that law to a prior statement (a videotaped interview with military investigators) by the alleged victim in Finch, Judge Wolfe explained that the statement was admissible under the new Mil. R. Evid. 801(d)(1)(B)(ii) because the defense had implied that the alleged victim’s in-court testimony was inconsistent with her prior statements to the investigators, and that implication “was factually rebutted by watching the interview.” 78 M.J. at 791.

Last week CAAF granted review:

No. 19-0298/AR. U.S. v. David M. Finch. CCA 20170501. 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 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).

Briefs will be filed under Rule 25.

Update: The NMCCA seems to have reached the same conclusion about the meaning of Mil. R. Evid. 801(d)(1)(B)(ii) in United States v. Norwood, __ M.J. __ (N-M. Ct. Crim. App. Aug. 9, 2019) (link to slip op.).