Prior Statements Limited at Trial for Armed Forces

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Under the Military Rules of Evidence, hearsay statements – those made outside of court and offered as substantive proof of something — are usually prohibited at trial. However, as with many laws, there are exceptions to this. 

One exception is Military Rule of Evidence 801(d)(1)(B), which allows a prior statement that has been made by a trial witness (and is consistent with his or her testimony at trial) to be admitted to rebut a charge that he or she made up their testimony or testified based on another motive or undue influence.

For example, if a witness testifies at trial that the defendant was seen running from a crime scene, the defense attorney could ask him or her about whether the state offered him or her immunity in exchange for such testimony. 

M.R.E. 801(d)(1)(B)(ii) After 2016

Then after 2016, under Military Rule of Evidence 801(d)(1)(B)(ii), the state was given the right to “rehabilitate [his or her] credibility as a witness when attacked on another ground.” Therefore, in this situation, the state prosecutor could call another witness to testify that the first witness told him or her that he or she had seen the defendant running from the crime scene prior to him or her making a deal for immunity. 

Since the government has interpreted this rule broadly, it allows all prior statements by their witnesses to be introduced when they are subject to cross-examination. Therefore the prosecution has the right to admit videos of interviews of the witnesses. In this case, the state would have the right to admit a video of an interview with the witness if he or she is subjected cross-examination. 

Requirements for Admissibility of Prior Statements

The Court of Appeals for the Armed Forces wanted to clarify Military Rule of Evidence 801(d)(1)(B)(ii), by stating that the rule does not mean that all prior consistent statements are admissible on any ground after impeachment. The Court explained that for a statement to be admissible it must: 

  1. Be consistent with the trial testimony;
  2. The witness’s credibility must have been attacked for a reason other than recent fabrication or recent improper influence or motive; and
  3. The prior consistent statement must actually be relevant to rehabilitate the witness’s credibility on the basis on which it was attacked.

This means that statements inconsistent with trial testimony concerning important facts of the case may not be admitted. Therefore although part of the video of an interview may be admissible, it doesn’t mean that the whole video is admissible. This determination is up to the judge. 

For example, if the witness who shared that he saw the defendant running from the crime scene is cross-examined about how long it had been since the accident and whether his memory could be poor, the state could then call another witness to testify that the first witness told him shortly after it had occurred, that he saw the defendant running from the crime scene. This could be used to disprove the defense’s assertion that he did not remember correctly, as it demonstrates that he made the same statement right after the incident. However, if the first witness never testified at trial that he saw the defendant running from the scene with a gun in his hand, the second witness would not be allowed to testify that the first had told him that. 

The Court-Martial Law Division of Aviso Law LLC Helps Military Members in Colorado Who Have Been Charged with a Crime

As you can see, the law can be extremely complex and confusing regarding the admission of prior statements at trial. This is why you need someone who has the experience and knowledge of the current law to help defend you.  

It’s important to understand that the U.S. Government has an interest in obtaining a conviction as soon as possible, as it does not wish to gain negative publicity about one of its service members. That is why it is so important to consult with a knowledgeable and experienced military attorney as soon as possible in order to ensure that your rights are protected.

If you are a military service member (active or reserve) and have been charged with a computer crime under the UCMJ, the Court-Martial Law Division of Aviso Law LLC can help. We proudly serve our military members, who sacrifice so much for our country. To learn more or to schedule a free consultation, contact us today!

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