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

App. 22, M.R.E. 803(19-20) APPENDIX 22
803(19)–(20) are taken without change from the Federal Rules
and had no express equivalents in the 1969 Manual.
(21) Reputation as to character. Rule 803(21) is taken from the
Federal Rule without change. It is similar to Para. 138 f of the
1969 Manual in that it creates an exception to the hearsay rule for
reputation evidence. “Reputation” and “community” are defined
in Rule 405(d), and “community” includes a “military organization
regardless of size.” Affidavits and other written statements
are admissible to show character under Rule 405(c), and, when
offered pursuant to that Rule, are an exception to the hearsay rule.
( 2 2 ) J u d g m e n t o r p r e v i o u s c o n v i c t i o n . R u l e 8 0 3 ( 2 2 ) i s t a k e n
from the Federal Rule but has been modified to recognize convictions
of a crime punishable by a dishonorable discharge, a unique
punishment not present in civilian life. See also Rule 609 and its
Analysis.
There is no equivalent to this Rule in military law. Although
the Federal Rule is clearly applicable to criminal cases, its original
intent was to allow use of a prior criminal conviction in a
subsequent civil action. To the extent that it is used for criminal
cases, significant constitutional issues are raised, especially if the
prior conviction is a foreign one, a question almost certainly not
anticipated by the Federal Rules Advisory Committee.
( 2 3 ) J u d g m e n t a s t o p e r s o n a l , f a m i l y o r g e n e r a l h i s t o r y , o r
boundaries. Rule 803(23) is taken verbatim from the Federal
Rule, and had no express equivalent in the 1969 Manual. Although
intended for civil cases, it clearly has potential use in
courts-martial for such matters as proof of jurisdiction.
(24) Other exceptions. Rule 803(24) is taken from the Federal
Rule without change. It had no express equivalent in the 1969
Manual as it establishes a general exception to the hearsay rule.
The Rule implements the general policy behind the Rules of
permitting admission of probative and reliable evidence. Not only
must the evidence in question satisfy the three conditions listed in
the Rule (materiality, more probative on the point than any other
evidence which can be reasonably obtained, and admission would
be in the interest of justice) but the procedural requirements of
notice must be complied with. The extent to which this exception
may be employed is unclear. The Article III courts have divided
as to whether the exception may be used only in extraordinary
cases or whether it may have more general application. It is the
intent of the Committee that the Rule be employed in the same
manner as it is generally applied in the Article III courts. Because
the general exception found in Rule 803(24) is basically one
intended to apply to highly reliable and necessary evidence, recourse
to the theory behind the hearsay rule itself may be helpful.
In any given case, both trial and defense counsel may wish to
examine the hearsay evidence in question to determine how well
it relates to the four traditional considerations usually invoked to
e x c l u d e h e a r s a y t e s t i m o n y : h o w t r u t h f u l w a s t h e o r i g i n a l
declarant? to what extent were his or her powers of observation
adequate? was the declaration truthful? was the original declarant
able to adequately communicate the statement? Measuring evidence
against this framework should assist in determining the
reliability of the evidence. Rule 803(24) itself requires the necessity
which is the other usual justification for hearsay exceptions.
A22-56
Rule 804 Hearsay exception; declarant
unavailable
(a) Definition of unavailability. Subdivisions (a)(1)–(a)(5) of Rule
804 are taken from the Federal Rule without change and are
generally similar to the relevant portions of Paras. 145 a and 145
b of the 1969 Manual, except that Rule 804(a)(3) provides that a
witness who “testifies as to a lack of memory of the subject
matter of the declarant’s statement” is unavailable. The Rule also
does not distinguish between capital and non-capital cases.
F e b r u a r y 1 9 8 6 A m e n d m e n t : T h e p h r a s e “ c l a i m o r l a c k o f
memory” was changed to “claim of lack of memory” to correct
an error in MCM, 1984.
Rule 804(a)(6) is new and has been added in recognition of
certain problems, such as combat operations, that are unique to
the armed forces. Thus, Rule 804(a)(6) will make unavailable a
witness who is unable to appear and testify in person for reason
of military necessity within the meaning of Article 49(d)(2). The
meaning of “military necessity” must be determined by reference
to the cases construing Article 49. The expression is not intended
to be a general escape clause, but must be restricted to the limited
circumstances that would permit use of a deposition.
(b) Hearsay exceptions
(1) Former testimony. The first portion of Rule 804(b)(1) is
taken from the Federal Rule with omission of the language relating
to civil cases. The second portion is new and has been
included to clarify the extent to which those military tribunals in
which a verbatim record normally is not kept come within the
Rule.
The first portion of Rule 804(b)(1) makes admissible former
testimony when “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.” Unlike Para.
145 b of the 1969 Manual, the Rule does not explicitly require
that the accused, when the evidence is offered against him or her,
have been “afforded at the former trial an opportunity, to be
adequately represented by counsel.” Such a requirement should be
read into the Rule’s condition that the party have had “opportunity
and similar motive.” In contrast to the 1969 Manual, the
Rule does not distinguish between capital and non-capital cases.
The second portion of Rule 804(b)(1) has been included to
ensure that testimony from military tribunals, many of which
ordinarily do not have verbatim records, will not be admissible
unless such testimony is presented in the form of a verbatim
record. The Committee believed substantive use of former testimony
to be too important to be presented in the form of an
incomplete statement.
Investigations under Article 32 of the Uniform Code of Military
Justice present a special problem. Rule 804(b)(1) requires
that “the party against whom the testimony is now offered had an
opportunity and similar motive to develop the testimony” at the
first hearing. The “similar motive” requirement was intended primarily
to ensure sufficient identity of issues between the two
proceedings and thus to ensure an adequate interest in examinat
i o n o f t h e w i t n e s s . S e e , e . g . , 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 . 8 0 4 ( b ) ( 1 ) ( ( 0 4 ) ) ( 1 9 7 8 ) . B e -
cause Article 32 hearings represent a unique hybrid of preliminary
hearings and grand juries with features dissimilar to both, it
was particularly difficult for the Committee to determine exactly
how subdivision (b)(1) of the Federal Rule would apply to Article