MILITARY RULE OF EVIDENCE 801 - HEARSAY
The United States Constitution guarantees, “in all criminal prosecutions, [that an] accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amend VI. The Confrontation Clause ensures the reliability of evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding. Maryland v. Craig, 497 U.S. 836, 845 (1990). This confrontation right forces all witnesses to “submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158 (1970) (footnote and citation omitted). At the most fundamental level, the Confrontation Clause compels the witnesses to “stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. U.S., 156 U.S. 237, 242-43 (1895).
“Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). These statements are generally inadmissible due to their lack of reliability. Hearsay statements are sufficiently dependable to allow their untested admission against an accused only when (1) the statements fall “within a firmly rooted hearsay exception” or (2) they contain “particularized guarantees of trustworthiness” such that adversarial testing would be expected to add little, if anything to their reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Statements are admissible under a “firmly rooted” hearsay exception when they fall within a hearsay category whose conditions have proven over time “to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath” and cross-examination at trial. Mattox v. U.S., 156 U.S. 237, 244 (1895). Firmly rooted hearsay exceptions include: co-conspirator statements, Bourjaily v. U.S., 483 U.S. 171 (1987); spontaneous declarations, White v. Illinois, 502 U.S. 346 (1992); statements made for the purposes of obtaining medical treatment, White v. Illinois; business records and public records, Ohio v. Roberts, 448 U.S. 56 (1980); dying declarations, Mattox v. U.S.; recorded recollection, Hatch v. State of Okl., 58 F.3d 1147 (10th Cir. 1995); state of mind, U.S. v. Alfonso, 66 F. Supp 261 (D.P.R. 1999); and cross-examined prior trial testimony, Mancusi v. Stubbs, 408 U.S 204 (1972).
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Daniel Conway Partner
For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
Gary Myers Partner
Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...Read More
Brian Pristera Attorney
A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
Joseph Galli Attorney
Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More