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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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    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 ...

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