The Residual Hearsat Exceptions: 4 Primer for Military Use

• Author: by Captain Edwrd D. Holmes
• Pages: 02

The nezc Military Rvdes ofEiidenee, which came tnto use during 1980, have been and mli eoxtinue to be e fruitful soi(i.ce of scholar-iy cornnieniary. *** Captain Holmes' addition to the literatii~e on this subject concerns .Milttory Rules %03/21, and %04fbjiSj, dealing mth hearsay eaeepiions not otherzbGsse spee$ied, 07 reszdzml ereep. tions

The pi~rposas of Congress in ~ p p ~ ~ t ' i ? ~ g the residuoi exceptions

are reiealed throqh eramination of the legzslatme history of the Federni Rules of Eczdence. Xotice repiremenl8, the discretion of the tr?al court in admitting or excluding proffered hearsay em- 'This article was unglnally a fhesii submitted in 1981 I" partlal hrlflllment of the requirements of The Judge Advocate Officers Graduate Course Inonresident). TJAGSA. Charlatterillto. Virginia.

The opman? and c o n ~ i ~ ~ l ~ n s presented in this artids are thane of rhe author

and do not nece8sarll? represent the V~PFS of The Judge Advocate Generaps Sehaal. the Department of the Army. the Department of Juatiee, or m y other gavernmenta1 agenq

- -Judge Advocate Generals Corps. United Bratee Army Resene Employed by the U.S Department of Juetxe as a pmeeutor in the Organized Crime and Racketeering Section at Kansan City. Mrssoun, April 1577 to present. Served on

*m> J.A.G. Corps. 1973-1576, aiaigned to rmy An Defense Center. Fort Bliss. Tex-stratlie law officer Member, 105th USAR u), Ksnasa C ~ I ? . Missouri. B A , 1970,

, Va.: J D , 1973, Washrngron Univeraify

School of Law. Sr Louli, Mo Completed Judge Adroeare Officer Basic Course, Dee 1973 Member of Mlasauri and Teras barr.rticles pvbliehed ~n The lrmy Lawyer. Aug. LTC Dennis F Coupe), and id , Apr. 19. at and srtlelei at 1573 Urb L Ann. 261 and 1974 Urh L Ann 141

* *Thirteen ~rfieles ais ailed m rhe fourth paragraph of note 2. Wro Several additional articles have ilnee appeared or will appear m The Army Lou,y*r and the Miirtory Lam R m w during the next year.

1. INTRODUCTION

   On 12 March 1980, Preaident Carter issued Executive Order No 12198, thereby amending Chapter XXVII of the Manual for Courts-Martial and adopting the Military Rules of Evidence for use in c~urts-martial.~

   Effective 1 September 1980, the Military Rules reflected in substantial form Articles I. 11. IV, and VI through XI of the Federal Rules af Evidence nhich hare been used in the United States district courts since 1975 Included in Section VI11 of the Military Rules are two controversial ruler, initially found in the

   2 Exec Order Yo 12198 11980) repririlrd I,/ the new Appendix 18 t o the Manual far Courri-M?arrm!, added by Change 3, dated 1 Sep 1960, and also ~n WeSt'8 Mill. tar? Justire Reporter, 81 6 M.J XLVII-CCXXXIX 11980) The President 15 ad. fhonzed by Art 36, Umfarm Code af M?llllary Justire [heremsfrer riled a3 U.C.>l J I" t e ~ f and >n faarnofenl, to piesenbe 'modes of proof' by mgulnflana which shall. 90 far as he eonaiderr praerleable. applb the prmclples aflaw and the rule6 of sridence gomrslly recognized in the trial of enm-mal case? in the United States disiriri CDUTII, but which ma) not be contrary to or inconsirtent with [the C C M J 110 U 5 C 636 11816)

   2 The Federal Rulea of Evidence *ere enacted a i Pub L Na 93-575 86 Slat 1926 e t deq (1975) The Federal Rules of Evidence are hereinafter mred 81 F.R.E or the Fedeiil Rules ~n both text and footnotes: tho Military Rules of Eiidenee. as M R E or the Milltar) Rules

   Sections 1. 11. IY. and VI through XI of the Milrlari Rules iarreapond eloaelg wfh Article8 I. 11. IV. and VI through XI ai the Federal Rules Between theie set8 of proiisions there me mlg minor ranations to account for difference8 an fer-minology and trial procedure

   Federal Ruler, which establiah nen exceptions to the hearsay Military Rule 803(24) provides:

   The folloning are not excluded by the hearsay ruie, even though the declarant is available as a witness:

   . . . (24) Other eseeptions. A statement not specifically COY- wed by any of the foregoing exceptions but having equiv- Seetmn I deals w i b "general pm~mmns'' ai B procedural or policy nsfure See-tian I1 is concerned uirh "Judicial Notice;'' Section IV, rith "Rslevsncy and )ti

   ' Section VI, with ''l\'merses,'' Seation VII, aith "Opmiona and Expert ny: ' Section VIII. Kith "Hearssy;" Section IX. with ''Authentication and Identiflearmn," Section X. with "Content8 of Tritmgs. Recordmgr. and Photo-graphs." ahile Seetion XI deala with "hl~aeellaneaui Rule8 "

   In Sharp eontrnat with the F R.E , Seetian 111 of the M.R.E LQ concerned with ''Exelusionmy Rules and Related Matters,'' while Section V adopts specific pnv1-leges applicable to the armed forces worldwlde. Far 8" excellent discussLon of theJI.R.E , comparing them rith former military practice and with the F.R E.. ~ e e the ielen articles comprising Sympoaium The Militand Rules of Euidmcr, The Army Lawyer, May 1980. at 1-58. Other ~rflelesan the new rules includeWilliams. Admisetbtlity o/ Polygraph Results Under the .Military Rule8 of Evt-dents. The Army Lawyer, June 1980, at 1-6: Sehinaei and Green, Impeachmentby Pit07 Conmctian Military Rule 01 Evidence 608, The Army Lauyer, Jan. 1981. 81 6-9, Eisenberg. Graymail and Giayhowa The Claaa@ed and O/firial Inlomalion Pnvilrgcs Cndir the Yiiilond Rulei afEutdence. The Army Lawyer. Mar 1981, at 9-20; Dean, The Dsltbriotiua Piivilrge under .U R E jog, The Amy Lawyer, NO".

   1981, at 1-7: and Woodruff. Piisileges Under the Yilttory

   Rules o/Emdence. 92 MII L.Rrv 5 (aprmg 1981). See slso Mqor Rehymsky's E-view af .Military Rules of E w d r m Uanuol elserhere m thx l m s ~ ~

   1981, 1-28, R ~ ~ ~ , R=I* SOP-A~

   'The "hearesy ~ ~ l e ' ' la emhadied in Rule 802, M R.E., which provides that "hear- sa) 18 not admissible except ai pronded by these ~ule8

   or by any Art ai Congress applleable ~n trlall h) court-martial." Rule 8UIlO. M.R.E., defines "hearaay" as "a statement. other than m e made h) the deelarani whds ieai~fying

   81 the frlal or

   hearing. offered in evidence to prois the truth of the matter asserred " A ''&atement," I" turn. 18 deflned by Rule 8OlIa). M R E , as "(1) 80 oral or cntten aiser-tim ni 12) nonverbal conduct of a permn, d n 1s Intended by the person as an as. 8eItlUn " Rule 801(c), M R E.. defines 8 ''declarant'' 8s simply "a pereon who makes B statement." in a departure from prmr praellee, admissions by a party-OPPDnent me no longer considered hearsay. pnrloualy adrnisiible as an exception to the rule Rule 8Ol(dJ(2). M R E. Smlarly, p m r ~f~femenfrof a wmesa made under oath are no longer considered hearsay, but may be offered far thew truth dlneanslalent with tnal testimony Rule BOl(d)(lJ, M R E

   LW,~ ~ ~ i ~ ~

   The lrmy

   L ~ ~

   Y ~ ~ .

   dent circumstantial guarantees of trustworthiness. if the court determines that (A) the statement is offered as eri-ilence of a material fact; !B) the statement is more proba-tire on the point for uhich it IS offered than any other evidence which the proponent can procure through reasonable efforts; and iC) the general purposes of these ~ules and the interests of justice will beat he aerred by admission a i the itatement into evidence Hou-ever, a statement may not be admitted under thin exception un-less the proponent of it makes knaun to the adverse part! aufficientl) in advance of the trial or hearing to pro-ride the adverse party i%-ith a fair opportunity to prepare to meet It. the intention to offer the statement and the particulars of it, includmg the name and address of the declarant.

   Uilitary Rule 604(h)i5) is identical with Military Rule 803(24). e*-eept that the former rule is applicable onl? when the declarant is unavailable as a is-itne~s.~

   Thus. ir-hen the declarant 1s "unauailahle." either or both exceptions may properly be utilized. If, hoirever. the declarant ia "available," only Rule 803!24) may appropriately be used. Both provisions refer to the "foregoing exceptions," which embody the more traditional exceptiona to the hearsay ru1e.j Both military rules are subatantially identical to them respective councesparte in Federal Ruler 80324) and 804(h)(S).

   'The term "ursvs:lable' is defined in Rule 8041al. M R E , uhirh IS diieuiied I" pea.er derai. 17 Part V af the text nJm Srr note 246. infra and aeeompan)lng text

   'The "foregoing exreptmr" of !6iliisr\ Rile 803 exclude from the hearsay ru!e evidence of ststementi !or absence tnereon falling into the fallou.mq categories elen though the deelarsrt 13 available 81 B ~11nes6 (1) present sense ~mpresr>onr 121 excited utterances: 13) than-existing mental, emotional or yhysrcal rondirian,

   . . . . . . .... .

   11.1 -. .j.

   . . marriage. baprlival and ~lmilareerfifiestei: (131 famil) records, (14) recorda of documents affecting an inferedr 17. propeny. 1161 ststemanis I" documenti affecting m interest in properti. 116) statements 111 anelent documents. 1171 marker re-pons e~mm~rcislpubllration;. 1151 learned fre~tiaer;

   119) reputation caneermng personal or family hisfar? 120) reputstian ~miernmqboundaries or general hworj 1211 repvrsriar a i i o eharserer. 122) judgment of prerlaus ianilcfmn. 1131 Jude- 1s

   19811 RESIDUAL mARSAY EXCEPTIOSS

   Commonly known as the "catch-all," "open-ended," or "residual" exceptions to the hearsay rule, Federal Rules 803(24) and 804(h)(E) (hereinafter referred to as the "residual exceptions"),B were a subject of lively debate m Congress and have since been applied in a variety of crirnmal and civil cases in both federal and state courts.7 The federal Courts interpreting these rules have, aecordmgly, risen to the occasion with a now subatanrial body of case Ian defining the

   menf as to personal, famil?. or general hrsfar), or boundaries The "foregoing ex-ceptmz" of Military Ruie SO4lbl exclude from the hearsah rule evidence of statements fallmg into the follouing eategoriel, provided the declarant IC "una-vailable'" 11) former mnmany: (2) brstemenfs under beliei ai impending death.!31 statements 8gm.t ~nferear: and 14) statement of perional or family history.

   The two...