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

App. 22, M.R.E. 801(d)(1) APPENDIX 22
perjury at a trial, hearing, or other proceeding, or in a deposition.”
The Rule does not require that the witness have been subject to
cross-examination at the earlier proceeding, but requires that the
witness must have been under oath and subject to penalty of
p e r j u r y . A l t h o u g h t h e d e f i n i t i o n o f “ t r i a l , h e a r i n g , o r o t h e r
proceeding” is uncertain, it is apparent that the Rule was intended
to include grand jury testimony and may be extremely broad in
scope. See, United States v. Castro-Ayon, 537 F.2d 1055 (9th
Cir.), cert. denied, 429 U.S. 983 (1976) (tape recorded statements
given under oath at a Border Patrol station found to be within the
Rule). It should clearly apply to Article 32 hearings. The Rule
does not require as a prerequisite a statement “given under oath
subject to the penalty of perjury.” The mere fact that a statement
was given under oath may not be sufficient. No foundation other
than that indicated as a condition precedent in the Rule is apparently
necessary to admit the statement under the Rule. But see
WEINSTEIN’S EVIDENCE 801–74 (1978).
Rule 801(d)(1)(B) makes admissible on the merits a statement
consistent with the in-court testimony of the witness and “offered
to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive.” Unlike Rule
801(d)(1)(A), the earlier consistent statement need not have been
made under oath or at any type of proceeding. On its face, the
Rule does not require that the consistent statement offered have
been made prior to the time the improper influence or motive
arose or prior to the alleged recent fabrication. Notwithstanding
this, at least two circuits have read such a requirement into the
rule. United States v. Quinto, 582 F.2d 224 (2d Cir. 1978); United
States v. Scholle, 553 F.2d 1109 (8th Cir. 1977). See also United
States v. Dominquez, 604 F.2d 304 (4th Cir. 1979).
The propriety of this limitation is clearly open to question. See
generally United States v. Rubin, 609 F.2d 51 (2d Cir. 1979). The
limitation does not, however, prevent admission of consistent
statements made after the inconsistent statement but before the
improper influence or motive arose. United States v. Scholle,
supra. Rule 801(d)(1)(B) provides a possible means to admit
evidence of fresh complaint in prosecution of sexual offenses.
Although limited to circumstances in which there is a charge, for
example, of recent fabrication, the Rule, when applicable, would
permit not only fact of fresh complaint, as is presently possible,
but also the entire portion of the consistent statement.
Under Rule 801(d)(1)(C) a statement of identification is not
hearsay. The content of the statement as well as the fact of
identification is admissible. The Rule must be read in conjunction
with Rule 321 which governs the admissibility of statements of
pretrial identification.
(2) Admission by party opponent. Rule 801(d)(2) eliminates a
number of categories of statements from the scope of the hearsay
r u l e . U n l i k e t h o s e s t a t e m e n t s w i t h i n t h e p u r v i e w o f R u l e
802(d)(1), these statements would have come within the exceptions
to the hearsay rule as recognized in the 1969 Manual.
Consequently, their “reclassification” is a matter of academic interest
only. No practical differences result. The reclassification
results from a belief that the adversary system impels admissibility
and that reliability is not a significant factor.
Rule 801(d)(2)(A) makes admissible against a party a statement
made in either the party’s individual or representative capacity.
A22-52
This was treated as an admission or confession under Para. 140 a
of the 1969 Manual, and is an exception of the prior hearsay rule.
Rule 801(d)(2)(B) makes admissible “a statement of which the
party has manifested the party’s adoption or belief in its truth.”
This is an adoptive admission and was an exception to the prior
hearsay rule. Cf. Para. 140 a(4) of the 1969 Manual. While
silence may be treated as an admission on the facts of a given
case, see, Rule 304(h)(3) and the analysis thereto, under Rule
801(d)(2) that silence must have been intended by the declarant to
have been an assertion. Otherwise, the statement will not be
h e a r s a y w i t h i n t h e m e a n i n g o f R u l e 8 0 1 ( d ) ( 2 ) a n d w i l l
presumably be admissible, if at all, as circumstantial evidence.
Rule 801(d)(2)(C) makes admissible “a statement by a person
authorized by the party to make a statement concerning the subject.”
While this was not expressly dealt with by the 1969 Manual,
it would be admissible under prior law as an admission; Cf.
Para. 140 b, utilizing agency theory.
Rule 801(d)(2)(D) makes admissible “a statement by the party’s
agent or servant concerning a matter within the scope of the
agency or employment of the agent or servant, made during the
existence of the relationship.” These statements would appear to
be admissible under prior law. Statements made by interpreters,
as by an individual serving as a translator for a service member in
a foreign nation who is, for example, attempting to consummate a
drug transaction with a non-English speaking person, should be
admissible under Rule 801(d)(2)(D) or Rule 801(d)(2)(C).
Rule 801(d)(2)(E) makes admissible “a statement by a coconspirator
of a party during the course and in furtherance of the
conspiracy.” This is similar to the military hearsay exception
found in Para. 140 b of the 1969 Manual. Whether a conspiracy
existed for purposes of this Rule is solely a matter for the military
judge. Although this is the prevailing Article III rule, it is also the
consequence of the Military Rules’ modification to Federal Rule
of Evidence 104(b). Rule 801(d)(2)(E) does not address many
critical procedural matters associated with the use of co-conspirator
evidence. See generally, Comment, Restructuring the Indep
e n d e n t E v i d e n c e R e q u i r e m e n t o f t h e C o c o n s p i r a t o r H e a r s a y
Exception, 127 U.Pa.L.Rev. 1439 (1979). For example, the burden
of proof placed on the proponent is unclear although a prep
o n d e r a n c e a p p e a r s t o b e t h e d e v e l o p i n g A r t i c l e I I I t r e n d .
Similarly, there is substantial confusion surrounding the question
of whether statements of an alleged co-conspirator may themselves
be considered by the military judge when determining
whether the declarant was in fact a co-conspirator. This process,
known as bootstrapping, was not permitted under prior military
l a w . S e e e . g . , U n i t e d S t a t e s v . D u f f y , 4 9 C . M . R . 2 0 8 , 2 1 0
(A.F.C.M.R. 1974); United States v. LaBossiere, 13 C.M.A. 337,
339, 32 C.M.R. 337, 339 (1962). A number of circuits have
suggested that Rule 104(a) allows the use of such statements, but
a t l e a s t t w o c i r c u i t s h a v e h e l d t h a t o t h e r f a c t o r s p r o h i b i t
bootstrapping. United States v. James, 590 F.2d 575 (5th Cir.) (en
banc), cert. denied, 442 U.S. 917 (1979); United States v. Valencia,
609 F.2d 603 (2d Cir. 1979). Until such time as the Article
III practice is settled, discretion would dictate that prior military
law be followed and that bootstrapping not be allowed. Other
procedural factors may also prove troublesome although not to
the same extent as bootstrapping. For example, it appears to be
appropriate for the military judge to determine the co-conspirator
question in a preliminary Article 39(a) session. Although receipt
of evidence “subject to later connection” or proof is legally possi-