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Navy-Marine Corps Court of Appeals Finds Military Judge Erred in Admitting Videotaped Statements

We have discussed the hearsay rule on several occasions. The rule against hearsay is intended to provide an accused the chance to directly confront witnesses against him or her. Statements made out of court cannot be repeated by witnesses at trial as evidence that the substance of the statements are true. For example, if LCpl Accused is on trial for assault, the Government cannot call SSgt Wasn’t There to testify that Sgt Eyewitness told her that LCpl Accused committed the assault. To do so would deprive LCpl Accused of the ability to confront Sgt Eyewitness about what he claimed to have seen.

As we have also frequently discussed, this rule has many exceptions. The exceptions exist in situations where the out-of-court statement was made in a way that would typically be considered reliable. This includes statements made to medical professionals for purposes of treatment or diagnosis or business records made in the course of regularly conducted business activity.

Recently, the Navy-Marine Corps Court of Appeals addressed another exception, one that is rarely used. The residual hearsay exception allows the admission of out-of-court statements made in circumstances that don’t fall under one of the listed exceptions but nevertheless are found to be similarly reliable. The rule requires the Military Judge to determine that the statements: 1) have equivalent circumstantial guarantees of trustworthiness, 2) are offered as evidence of material fact, 3) are more probative on the matter than other available evidence, and 4) if introduced, will best serve the purposes of the evidentiary rules and the interests of justice.

In United States v. Dominguez, the Navy-Marine Corps Court dealt with a case where the accused was charged with several offenses of child sexual abuse against his young daughter. After making the allegation to her mother, the child was forensically interviewed on two occasions 14 months apart. At trial, the child testified about some of the charged allegations, but did not testify to everything she had talked about in the forensic interviews. The Government sought to then admit the videos of the two forensic interviews under the residual hearsay exception. The Military Judge heard from the forensic interviewer who conducted the questioning in the videos, but did not view the videos themselves. She found that the Government had satisfied the requirements of the exception and admitted the videos. The Accused was found guilty of an offense the child did not testify about at trial but did discuss in one of the videos.

The appellate court found fault with the Military Judge’s ruling because she had not actually viewed the videos before determining that the statements could be introduced. Without viewing the statements themselves, the court did not agree that the Military Judge was able to properly assess the credibility or trustworthiness of those statements. The court also noted that the Military Judge addressed the two statements collectively despite the fact that they were made 14 months apart and that the statements made by the child in each were materially different.

The court held that the Military Judge erred in finding the videotaped forensic interviews to be sufficiently trustworthy to be admitted under the residual hearsay rule. The court also found errors in the admission of statements made by the child under other exceptions to the hearsay rule and in the denial of evidence the defense sought to introduce. As a result of the accumulation of these errors, the court set aside all of the findings of guilt and sent the case back to be retried.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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