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

App. 22, M.R.E. 804(b)(3) APPENDIX 22
vexing problem— that of the declaration against penal interest
which implicates the accused as well as the declarant. On the face
of the Rule, such a statement should be admissible, subject to the
effects, if any, of Bruton v. United States, 391 U.S. 123 (1968)
and Rule 306. Notwithstanding this, there is considerable doubt as
to the applicability of the Rule to such a situation. 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
804–93, 804–16 (1978). Although the legislative history reflects
an early desire on the part of the Federal Rules of Evidence
A d v i s o r y C o m m i t t e e t o p r o h i b i t s u c h t e s t i m o n y , a p r o v i s i o n
doing so was not included in the material reviewed by Congress.
Although the House included such a provision, it did so apparently
in large part based upon a view that Bruton, supra,
p r o h i b i t e d s u c h s t a t e m e n t s — a r g u a b l y a n e r r o n e o u s v i e w o f
Bruton, supra, see, Bruton, supra n.3 at 128, Dutton v. Evans,
4 0 0 U . S . 7 4 ( 1 9 7 0 ) . T h e C o n f e r e n c e C o m m i t t e e d e l e t e d t h e
House provision, following the Senate’s desires, because it believed
it inappropriate to “codify constitutional evidentiary princip
l e s . ” W E I N S T E I N ’ S E V I D E N C E a t 8 0 4 – 1 6 ( 1 9 7 8 ) c i t i n g
CONG.REC.H 11931–32 (daily ed. Dec. 14, 1974). Thus, applicability
of the hearsay exception to individuals implicating the
accused may well rest only on the extent to which Bruton, supra ,
governs such statement. The Committee intends that the Rule
extend to such statements to the same extent that subdivision
8 0 4 ( b ) ( 4 ) i s h e l d b y t h e A r t i c l e I I I c o u r t s t o a p p l y t o s u c h
statements.
(4) Statement of personal or family history. Rule 804(b)(4) of
the Federal Rule is taken verbatim from the Federal Rule, and had
no express equivalent in the 1969 Manual. The primary feature of
Rule 803(b)(4)(A) is its application even though the “declarant
had no means of acquiring personal knowledge of the matter
stated.”
(5) Other exceptions. Rule 804(b)(5) is taken without change
from the Federal Rule and is identical to Rule 803(24). As Rule
803 applies to hearsay statements regardless of the declarant’s
availability or lack thereof, this subdivision is actually superfluous.
As to its effect,see the Analysis to Rule 803(24).
Rule 805 Hearsay within hearsay
Rule 805 is taken verbatim from the Federal Rule. Although
the 1969 Manual did not exactly address the issue, the military
rule is identical with the new rule.
Rule 806 Attacking and supporting credibility of
declarant
Rule 806 is taken from the Federal Rule without change. It
restates the prior military rule that a hearsay declarant or statement
may always be contradicted or impeached. The Rule eliminates
any requirement that the declarant be given “an opportunity
to deny or explain” an inconsistent statement or inconsistent conduct
when such statement or conduct is offered to attack the
hearsay statement. As a result, Rule 806 supersedes Rule 613(b)
which would require such an opportunity for a statement inconsistent
with in-court testimony.
A22-58
SECTION IX
AUTHENTICATION AND INDENTIFICATION
Rule 901 Requirement of authentication or
identification
(a) General provision. Rule 901(a) is taken verbatim from the
Federal Rule, and is similar to Para. 143 b of the 1969 Manual,
which stated in pertinent part that: “A writing may be authenticated
by any competent proof that it is genuine— is in fact what
it purports or is claimed to be.” Unlike the 1969 Manual provision,
however, Rule 901(a) is not limited to writings and consequently
is broader in scope. The Rule supports the requirement
for logical relevance. See Rule 401.
There is substantial question as to the proper interpretation of
the Federal Rule equivalent of Rule 901(a). The Rule requires
only “evidence sufficient to support a finding that the matter in
question is what its proponent claims.” It is possible that this
phrasing supersedes any formulaic approach to authentication and
that rigid rules such as those that have been devised to authenticate
taped recordings, for example, are no longer valid. On the
other hand, it appears fully appropriate for a trial judge to require
such evidence as is needed “to support a finding that the matter in
question is what its proponent claims,” which evidence may echo
in some cases the common law formulations. There appears to be
no reason to believe that the Rule will change the present law as
it affects chains of custody for real evidence— especially if fungible.
Present case law would appear to be consistent with the
new Rule because the chain of custody requirement has not been
applied in a rigid fashion. A chain of custody will still be required
when it is necessary to show that the evidence is what it is
claimed to be and, when appropriate, that its condition is unchanged.
Rule 901(a) may make authentication somewhat easier, but
is unlikely to make a substantial change in most areas of military
practice.
As is generally the case, failure to object to evidence on the
grounds of lack of authentication will waive the objection. See
Rule 103(a).
(b) Illustration. Rule 901(b) is taken verbatim from the Federal
Rule with the exception of a modification to Rule 901(b)(10).
Rule 901(b)(10) has been modified by the addition of “or by
applicable regulations prescribed pursuant to statutory authority.”
The new language was added because it was viewed as impracticable
in military practice to require statutory or Supreme Court
action to add authentication methods. The world wide disposition
of the armed forces with their frequent redeployments may require
rapid adjustments in authentication procedures to preclude
substantial interference with personnel practices needed to ensure
operational efficiency. The new language does not require new
statutory authority. Rather, the present authority that exists for the
various Service and Departmental Secretaries to issue those regulations
necessary for the day to day operations of their department
is sufficient.
Rule 901(b) is a non-exhaustive list of illustrative examples of
authentication techniques. None of the examples are inconsistent
with prior military law and many are found within the 1969
Manual, see, Para. 143 b. Self-authentication is governed by Rule
902.