2008 edition - Fort Sam Houston - U.S. Army

M.R.E. 803(18)
t i o n , s t a t e m e n t s c o n t a i n e d i n p u b l i s h e d t r e a t i s e s ,
periodicals, or pamphlets on a subject of history,
medicine or other science or art, established as a
reliable authority by the testimony or admission of
the witness or by other expert testimony or by judicial
notice. If admitted, the statements may be read
into evidence but may not be received as exhibits.
(19) Reputation concerning personal or family history.
Reputation among members of the person’s
family by blood, adoption, or marriage, or among
the person’s associates, or in the community, concerning
the person’s birth, adoption, marriage, div
o r c e , d e a t h , l e g i t i m a c y , r e l a t i o n s h i p b y b l o o d ,
adoption, or marriage, ancestry, or other similar fact
of the person’s personal or family history.
(20) Reputation concerning boundaries or general
history. Reputation in a community, arising before
the controversy, as to boundaries of or customs affecting
lands in the community, and reputation as to
events of general history important to the community
or State or nation in which located.
(21) Reputation as to character. Reputation of a
person’s character among the person’s associates or
in the community.
(22) Judgment of previous conviction. Evidence of a
final judgment, entered after a trial or upon a plea of
guilty (but not upon a plea of nolo contendere),
adjudging a person guilty of a crime punishable by
death, dishonorable discharge, or imprisonment in
excess of one year, to prove any fact essential to
sustain the judgment, but not including, when offered
by the Government for purposes other than
impeachment, judgments against persons other than
the accused. The pendency of an appeal may be
shown but does not affect admissibility. In determining
whether a crime tried by court-martial was puni
s h a b l e b y d e a t h , d i s h o n o r a b l e d i s c h a r g e , o r
imprisonment in excess of one year, the maximum
punishment prescribed by the President under Article
56 at the time of the conviction applies without
regard to whether the case was tried by general,
special, or summary court-martial.
(23) Judgment as to personal, family or general history,
or boundaries. Judgments as proof of matters
of personal, family, or general history, or boundaries
essential to the judgment, if the same would be
provable by evidence of reputation.
(24) Other exceptions. [Transferred to M.R.E. 807]
III-42
Rule 804. Hearsay exceptions; declarant
unavailable
(a) Definitions of unavailability. “Unavailability as a
witness” includes situations in which the declarant—
(1) is exempted by ruling of the military judge on
the ground of privilege from testifying concerning
the subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning the
subject matter of the declarant’s statement despite an
order of the military judge to do so; or
(3) testifies to a lack of memory of the subject
matter of the declarant’s statement; or
(4) is unable to be present or to testify at the
hearing because of death or then existing physical or
mental illness or infirmity; or
(5) is absent from the hearing and the proponent
of the declarant’s statement has been unable to procure
the declarant’s attendance (or in the case of a
hearsay exception under subdivision (b)(2), (3), or
( 4 ) , t h e d e c l a r a n t ’ s a t t e n d a n c e o r t e s t i m o n y ) b y
process or other reasonable means; or
(6) is unavailable within the meaning of Article
49(d)(2).
A declarant is not unavailable as a witness if the
d e c l a r a n t ’ s e x e m p t i o n , r e f u s a l , c l a i m o f l a c k o f
memory, inability, or absence is due to the procurem
e n t o r w r o n g d o i n g o f t h e p r o p o n e n t o f t h e
declarant’s statement for the purpose of preventing
the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable
as a witness.
(1) Former testimony. Testimony given as a witness
at another hearing of the same or different
proceeding, or in a deposition taken in compliance
w i t h l a w i n t h e c o u r s e o f t h e s a m e o r a n o t h e r
proceeding, if the party against whom the testimony
is now offered had an opportunity and similar motive
to develop the testimony by direct, cross, or
redirect examination. A record of testimony given
b e f o r e c o u r t s - m a r t i a l , c o u r t s o f i n q u i r y , m i l i t a r y
c o m m i s s i o n s , o t h e r m i l i t a r y t r i b u n a l s , a n d b e f o r e
proceedings pursuant to or equivalent to those required
by Article 32 is admissible under this subdivision
if such a record is a verbatim record. This
paragraph is subject to the limitations set forth in
Articles 49 and 50.
(2) Statement under belief of impending death. In
a prosecution for homicide or for any offense result-