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).