CAAF decided the Army case of United States v. Finch, __ M.J. __, No. 19-0298/AR (CAAFlog case page) (link to slip op.), on March 3, 2020. Explaining that a prior consistent statement offered under the new Mil. R. Evid. 801(d)(1)(B)(ii) “must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked,” CAAF finds that the military judge in this case erred but that the error was harmless.
Judge Ohlson writes for a unanimous court.
CAAF granted review to determine:
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, sexual abuse of a child, and three specifications of rape of 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, 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(d)(1)(B).
Mil. R. Evid. 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 thing 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 that allow admission of prior statements either:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground
Mil. R. Evid. 801(d)(1)(B). The first part is a longstanding rule that CAAF has considered many times, including just last term in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page). But the second part is a new rule that was added to the federal rules in 2014 (discussed here), and incorporated into the military rules in 2016 (noted here).
Military prosecutors took a broad view of the new rule, seeking admission of prior statements whenever a witness was impeached by the defense. The Army CCA’s opinion in this case rejected that view, requiring that a prior consistent statement actually address the specific manner in which the witness was attacked. United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). The NMCCA reached the same conclusion in United States v. Norwood, 79 M.J. 644 (N-M. Ct. Crim. App. Aug. 9, 2019), pet. for rev. granted, __ M.J. __ (C.A.A.F. Jan 21, 2020) (discussed here). CAAF now endorses those holdings, with Judge Ohlson outlining a five-part test for admissibility of a prior consistent statement under the new rule:
for a prior consistent statement to be admissible under M.R.E. 801(d)(1)(B)(ii), it must satisfy the following:
(1) the declarant of the out-of-court statement must testify,
(2) the declarant must be subject to cross-examination about the prior statement,
(3) the statement must be consistent with the declarant’s testimony,
(4) the declarant’s credibility as a witness must have been “attacked on another ground” other than the ones listed in M.R.E. 801(d)(1)(B)(i), and
(5) the prior consistent statement must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked.
Slip op. at 12 (paragraphing added).
Judge Ohlson explains that “the proper parameters” of a prior consistent statement admissible under the new Mil. R. Evid. 801(d)(1)(B)(ii) “presents an issue of first impression” for CAAF. The court turns to four sources of law to address the meaning of the rule: the plain text of the rule, CAAF’s own case law, the Drafters’ Analysis section of the Manual for Courts-Martial, and precedent from federal appellate courts involving the identical rule. Slip op. at 10. Considering those things, CAAF reaches three conclusions.
First, CAAF concludes that the new Mil. R. Evid. 801(d)(1)(B)(ii) is exclusive of the old Mil. R. Evid. 801(d)(1)(B)(i). Observing that the new rule is available for a witness “when attacked on another ground,” Judge Ohlson writes that:
The rule’s mention of “another ground” refers to one other than the grounds listed in M.R.E. 801(d)(1)(B)(i): recent fabrication or an improper influence or motive in testifying.
Slip op. at 10. There is not, however, a list of other grounds that trigger the rule, and Judge Ohlson notes only that “the Drafters’ Analysis lists ‘charges of inconsistency or faulty memory’ as two examples.” Slip. op. at 10 (quoting Drafters’ Analysis at A22-61).
Second, CAAF concludes that the new rule merely changes how prior consistent statements are treated, and that it does not expand the universe of prior consistent statements that might be presented to the factfinder. Observing that “prior consistent statements had long been admissible at common law for the limited purpose of rehabilitating a witness’s credibility,” slip op. at 10, Judge Ohlson writes:
The effect of the rule change is to admit prior consistent statements for their value in rehabilitating a witness’s credibility as has always been the practice, and now also as substantive evidence for the truth of the matter asserted. Drafters’ Analysis at A22-61.
. . .
the permissible uses of admitted evidence have changed, but the requirements to admit that evidence have not. It is not the case that under M.R.E. 801(d)(1)(B)(ii), all prior consistent statements are now automatically admissible following impeachment on any ground.
Slip op. at 10-11 (emphases in original).
Third, CAAF holds that the proponent of a prior consistent statement must demonstrate, with particularity, that each such statement serves a specific rehabilitative purpose under either the new rule or the old rule. Judge Ohlson writes that:
The federal circuit courts that have applied Fed. R. Evid. 801(d)(1)(b)(ii) have done so by ascertaining the type of impeachment that has been attempted, and then evaluating whether the prior consistent statements offered for admission would actually rehabilitate the declarant’s credibility as a witness.
Slip op. at 11.
Those conclusions lead to the five-part test quoted above, with emphasis that “the proponent of the evidence bears the burden of articulating the relevancy link between the prior consistent statement and how it will rehabilitate the witness with respect to the particular type of impeachment that has occurred.” Slip op. at 12.
CAAF then turns to the evidence admitted in this case as a prior consistent statement: the entire videotaped interview of the alleged victim. Faulting the military judge for failing “to put any findings of fact or conclusions of law on the record,” and failing “to review the video before admitting it,” CAAF sees the most serious error as the military judge’s decision to admit “the entire video interview rather than limiting the evidence to those portions of the interview that actually contained prior consistent statements.” Slip op. at 12-13 (emphases in original). In particular, Judge Ohlson notes that:
When a party moves to introduce a prior consistent statement under M.R.E. 801(d)(1)(B), the statement must be “generally consistent” with the declarant’s testimony at trial to be admissible. Muhammad, 512 F. App’x at 166 (internal quotation marks omitted) (citation omitted). To the extent a prior statement contains substantive information inconsistent with the declarant’s in-court testimony, those material inconsistent aspects of the statement are hearsay and are not admissible under M.R.E. 801(d)(1)(B).
Slip op. at 14 (emphasis added). CAAF finds that the videotaped interview that was admitted was “generally consistent” with the alleged victim’s in-court testimony, and was not “so inconsistent as to fail the third prong of the threshold admissibility requirements of M.R.E. 801(d)(1)(B).” Slip op. at 15 (emphasis added). But CAAF also finds that one particular statement in the interview was not consistent with anything the witness testified to at trial and – because it tended to bolster her in-court testimony on the important issue of her truthfulness – CAAF holds that it was wrongly admitted as a prior consistent statement. Under the circumstances of this case, however, that error was harmless.
CAAF’s conclusion that the new Mil. R. Evid. 801(d)(1)(B)(ii) is merely an expansion of how prior statements may be used – and specifically that it does not expand the universe of prior statements that may be presented to the factfinder – is a significant repudiation of the view that once a witness is attacked, all of the witness’s prior statements may be admitted. Finch clarifies that only prior consistent statements are admissible (and not entire prior conversations) and that any such statement “must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked.” Slip op. at 12. Put differently, the rehabilitative value of the prior statement must specifically address the manner in which the witness was impeached.
• ACCA opinion (78 M.J. 781)
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Gov’t Div.) brief
• Blog post: Argument preview
• Oral argument audio (wma)(mp3)
• CAAF opinion
• Blog post: Opinion analysis