18 July 2007

Mil. R. Evid. 803(3)

Mil. R. Evid. 803(3) is one of the most difficult of the hearsay exceptions to apply. Mil. R. Evid. 803 provides as follows:

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

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

In a recent article, James J. Duane, Professor, Regent University School of Law, and faculty member of the National Trial Advocacy College at the University of Virginia School of Law, explores the meaning of Fed. R. Evid. 803(3) and reviews how trial an appellate courts have misapplied it. James J. Duane, The Admissibility of Memories and Beliefs, Criminal Justice, vol. 22, no. 2 (Summer 2005) at 17. Professor Duane employs a standard scenario for investigating the appropriate application of the hearsay exception--a man is accused of killing his wife--and asks two questions: (1) May the defense introduce evidence that the accused proclaimed his innocence to the police and others; and (2) may the prosecution introduce evidence that the deceased feared the accused

The catalyst for the article may have been United States v. Hayes, 369 F.3d 564 (D.C. Cir. 2004)--a case "decided by a remarkably distinguished panel of judges, including three former lawyers with experience in the U.S. Department of Justice; one of them was the chief judge of the circuit and a former Harvard Law School professor, and another was a young judge named John G. Roberts, Jr., who has since become the Chief Justice of the U.S. Supreme Court." In that case, a conspirator who had confessed made a pretext telephone call for the police to a coconspirator. The coconspirator apparently guessed as much and kept telling the conspirator to just tell the truth--implying that he had nothing to hide and had done nothing wrong. At trial, the judge denied a defense request to admit the tapes of the conversation. The D.C. Circuit concluded that the Government's objection to admission of the tape--self-serving hearsay--was "beside the point." For "even if Hayes did intend implicitly to assert his innocence, his statements were still admissible to show his state of mind." Id. at 568. The Circuit Court nevertheless found the error was harmless.

Professor Duane asserts that "the ruling in Hayes is so plainly erroneous that no ethical defense counsel can cite it in good conscience, at least not if you read beyond this point in this article." Unlike statements such as "I am tired," "I am hungry," or "I am in pain"--which are descriptions of the declarant's physical, mental, or emotional condition at the time of the statement--the phrase "'I am innocent' is describing a memory of past conduct." Fed. R. Evid. 803(3) does not apply to "statements of memory or belief to prove the fact remembered or believed."

Professor Duane has similar problems with judges who permit friends of the deceased to testify that the "woman once said she was afraid of him--invariably because of threatening things she said or implied he had done in the past." Such evidence should only be admitted on the theory that "evidence about the mental state of the victim as to what she feared or believed or thought she remembered . . . may still help the jury decide whether a person with her mental state would have been likely to do the things that the defense claims she did." For example, when an accused claims he shot his ex-girlfriend in self-defense when she came over to his house with a gun, the prosecutor should be allowed to call a friend of the deceased who can testify that shortly before her death, the alleged victim said she was terrified of the defendant or claimed to be terrified of guns. This testimony rebuts the defense contention that she would have gone over to his house with a gun.

Professor Duane further warns of asking jurors to understand and actually apply the limiting instruction that accompanies the admission of Fed. R. Evid. 803(3) material--that statements of memory or belief are admitted under Rule 803(3) "only to prove that the witness had that belief or memory, but not that her memory or belief is true."

The most recent CAAF opinion on the subject is United States v. Lovett, 59 M.J. 230, 234 (2004). In that case, the appellant had been charged with soliciting LC to make his wife disappear. "On cross-examination, defense counsel asked LC whether Appellant told him that he ”didn’t want any harm to come to his wife.” The CAAF bailed, holding that it was harmless whether or not it was error.

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