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

le, the probability of serious error, likely requiring a mistrial, is
apparent.
Rule 801(d)(2)(E) does not appear to change what may be
termed the “substantive law” relating to statements made by coconspirators.
Thus, whether a statement was made by a co-conspirator
in furtherance of a conspiracy is a question for the military
judge, and a statement made by an individual after he or she
was withdrawn from a conspiracy is not made “in furtherance of
the conspiracy.”
Official statements made by an officer—as by the commanding
officer of a battalion, squadron, or ship, or by a staff officer, in an
endorsement of other communication—are not excepted from the
operation of the hearsay rule merely by reason of the official
character of the communication or the rank or position of the
officer making it.
The following examples of admissibility under this Rule may
be helpful:
(1) A is being tried for assaulting B. The defense presents
the testimony of C that just before the assault C heard B say to A
that B was about to kill A with B’s knife. The testimony of C is
not hearsay, for it is offered to show that A acted in self-defense
because B made the statement and not to prove the truth of B’s
statement.
(2) A is being tried for rape of B. If B testifies at trial, the
testimony of B that she had previously identified A as her attacker
at an identification lineup would be admissible under Rule
801(d)(1)(C) to prove that it was A who raped B.
(3) Private A is being tried for disobedience of a certain
order given him orally by Lieutenant B. C is able to testify that he
heard Lieutenant B give the order to A. This testimony, including
testimony of C as to the terms of the order, would not be hearsay.
(4) The accused is being tried for the larceny of clothes
from a locker. A is able to testify that B told A that B saw the
accused leave the quarters in which the locker was located with a
bundle resembling clothes about the same time the clothes were
stolen. This testimony from A would not be admissible to prove
that facts stated by B.
(5) The accused is being tried for wrongfully selling government
clothing. A policeman is able to testify that while on duty
he saw the accused go into a shop with a bundle under his arm;
that he entered the shop and the accused ran away; that he was
unable to catch the accused; and that thereafter the policeman
asked the proprietor of the shop what the accused was doing
there; and that the proprietor replied that the accused sold him
some uniforms for which he paid the accused $30. Testimony by
the policeman as to the reply of the proprietor would be hearsay
if it was offered to prove the facts stated by the proprietor. The
fact that the policeman was acting in the line of duty at the time
the proprietor made the statement would not render the evidence
admissible to prove the truth of the statement.
(6) A defense witness in an assault case testifies on direct
examination that the accused did not strike the alleged victim. On
cross-examination by the prosecution, the witness admits that at a
preliminary investigation he stated that the accused had struck the
alleged victim. The testimony of the witness as to this statement
will be admissible if he was under oath at the time and subject to
a prosecution for perjury.
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 803(4)
Rule 802 Hearsay rule
Rule 802 is taken generally from the Federal Rule but has been
modified to recognize the application of any applicable Act of
Congress.
Although the basic rule of inadmissibility for hearsay is identical
with that found in Para. 139a of the 1969 Manual, there is a
substantial change in military practice as a result of Rule 103(a).
Under the 1969 Manual, hearsay was incompetent evidence and
did not require an objection to be inadmissible. Under the new
Rules, however, admission of hearsay will not be error unless
there is an objection to the hearsay. See Rule 103(a).
Rule 803 Hearsay exceptions; availability of
declarant Immaterial
Rule 803 is taken generally from the Federal Rule with
modifications as needed for adaptation to military practice. Overall,
the Rule is similar to practice under Manual Paras. 142 and
144 of the 1969 Manual. The Rule is, however, substantially
more detailed and broader in scope than the 1969 Manual.
(1) Present sense impression. Rule 803(1) is taken from the Federal
Rule verbatim. The exception it establishes was not recognized
in the 1969 Manual for Courts-Martial. It is somewhat
similar to a spontaneous exclamation, but does not require a
startling event. A fresh complaint by a victim of a sexual offense
m a y c o m e w i t h i n t h i s e x c e p t i o n d e p e n d i n g u p o n t h e
circumstances.
(2) Excited utterance. Rule 803(2) is taken from the Federal Rule
verbatim. Although similar to Para. 142 b of the 1969 Manual
with respect to spontaneous exclamations, the Rule would appear
to be more lenient as it does not seem to require independent
evidence that the startling event occurred. An examination of the
Federal Rules of Evidence Advisory Committee Note indicates
some uncertainty, however. S. Saltzburg & K. Redden, FED-
ERAL RULES OF EVIDENCE MANUAL 540 (2d ed. 1977). A
fresh complaint of a sexual offense may come within this exception
depending on the circumstances.
(3) Then existing mental, emotional, or physical condition. Rule
803(3) is taken from the Federal Rule verbatim. The Rule is
similar to that found in 1969 Manual Para. 142d but may be
slightly more limited in that it may not permit statements by an
individual to be offered to disclose the intent of another person.
Fresh complaint by a victim of a sexual offense may come within
this exception.
(4) Statements for purposes of medical diagnosis or treatment.
Rule 803(4) is taken from the Federal Rule verbatim. It is substantially
broader than the state of mind or body exception found
in Para. 142 d of the 1969 Manual. It allows, among other
matters, statements as to the cause of the medical problem presented
for diagnosis or treatment. Potentially, the Rule is extremely
broad and will permit statements made even to nonmedical
personnel (e.g., members of one’s family) and on behalf
of others so long as the statements are made for the purpose of
diagnosis or treatment. The basis for the exception is the presumption
that an individual seeking relief from a medical problem
has incentive to make accurate statements. See generally, 4 J.
W e i n s t e i n & M . B e r g e r , W E I N S T E I N ’ S E V I D E N C E P a r a .
804(4)(01) (1978). The admissibility under this exception of those
portions of a statement not relevant to diagnosis or treatment is
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