CAAF Reverses Army Court on Hearsay Ruling

In June 2020, the Army Court of Criminal Appeals issued an opinion in United States v. Henry affirming the military judge’s decision to exclude four hearsay statements made by the alleged victim and her son. We discussed that opinion here. The government appealed the Army Court decision to the Court of Appeals for the Armed Forces (CAAF). This month, CAAF reversed the Army Court of Criminal Appeals decision, determining that all four of the statements were admissible as excited utterances.

United States v. Henry involves allegations of domestic assault. The government wanted to call a neighbor who had been awakened in the middle of the night by pounding on the door. When he opened it, the accused’s son was standing there, saying “He’s beating my mom. He’s beating my mom.” The neighbor went to change his clothes and when he came back to the door, the son was running back to his house yelling “You better not hit her again.” Soon after, the door to the accused’s house flew open and his wife and children ran out, with the accused chasing her. As she ran, the accused’s wife said, “He hit me. He hit me.” Once she and her children were in the neighbor’s home, the accused’s wife told the 911 operator that her husband had “been beating me for the last couple of hours.”

The military judge did not allow the neighbor to testify to the four statements made by the accused’s wife and son because he did not believe they satisfied the requirements of the excited utterance and present sense impression exceptions to the hearsay rule. The Army Court of Appeals agreed in two separate opinions.

In it’s reversal of the Army Court decision, CAAF focused on the three requirements for admitting a hearsay statement as an excited utterance: 1) the statement must be spontaneous; 2) the event must be startling; and 3) the speaker must be under stress caused by the startling event. In evaluating these requirements, CAAF emphasized that the statements themselves are sufficient to establish the existence of the startling event, they do not need to be corroborated by other evidence. CAAF found that the four statements considered as part of the totality of the circumstances provided evidence that a startling event had occurred close in time to when the statements were made. The Court determined that any questions the military judge had about whether the statements were consistent with other evidence or whether the accused’s son actually witnessed an assault were for the members to consider in deciding what weight to give these statements, not bases for excluding the statements themselves. Finally, CAAF held that the military judge had misapplied the law and had raised the standard for admission to “an impermissibly high level.” The case was returned to the Army Court of Criminal Appeals for action consistent with the CAAF opinion.

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